RAPID/Roadmap/15-NM-a(1)

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New Mexico Air Quality Permit for Construction Activities (15-NM-a(1))

Information current as of 2020
In New Mexico, bulk transmission project construction activities and equipment may require either a Notice of Intent or an Air Quality Construction Permit from the New Mexico Environment Department (NMED), Air Quality Bureau. The temporary use of a portable diesel generator that qualifies as a “nonroad engine” under 40 C.F.R. § 89.2 is considered a “portable stationary source” under N.M. Code R. § 20.2.72.7; New Mexico Environment Department – The Regulation of Non-Road Engines Under 20.2.70, 20.2.72, and 20.2.73 NMAC. NMED requires that nonroad engines undergo an applicability analysis in order to determine whether an Air Quality Construction Permit is required pursuant to N.M. Code R. § 20.2.72.200. New Mexico Environment Department – The Regulation of Non-Road Engines Under 20.2.70, 20.2.72, and 20.2.73 NMAC. Other equipment brought onsite temporarily may also require a permit and should be included in the applicability analysis. Forklifts, courier vehicles, front end loaders, graders, carts, maintenance trucks, and fugitive emissions from fleet vehicle refueling operations are exempt from permitting.


A developer engaged in construction activities over an area of one acre or greater must also comply with fugitive dust rules contained in N.M. Code R. § 20.2.23. N.M. Code R. § 20.2.23.108(A)(1). NMED’s fugitive dust rules require a developer to:

  • Prevent visible emission from fugitive dust sources that pose a threat to public health or interfere with public welfare; N.M. Code R. § 20.2.23.109.
  • Prevent visible emissions from construction or bulk material handling or storage from crossing the property lines from which it originates; N.M. Code R. § 20.2.23.110.
  • Utilize one or more control measures utilize one or more fugitive dust control measures in accordance with N.M. Code R. § 20.2.23.111; and
  • Develop and maintain a fugitive dust control plan in accordance with N.M. Code R. § 20.2.23.112, which must be available to NMED upon request.


Note: If a developer’s project extends into City of Albuquerque or the County of Bernalillo, the developer should consult the Albuquerque-Bernalillo County Air Quality Control Board, which has its own air quality permitting program. The developer must apply for applicable permits with that program. New Mexico Environment Department – Air Quality Bureau Jurisdiction.



Air Quality Permit for Construction Activities Process


15-NM-a.1 — Consult with the New Mexico Environment Department (NMED)

A developer may consult with NMED in order to determine whether a nonroad engine (e.g., a temporary, portable diesel generator) or other equipment will require either a Notice of Intent pursuant to N.M. Code R. § 20.2.73.200 or an Air Quality Construction Permit pursuant to N.M. Code R. § 20.2.72.200. New Mexico Environment Department – The Regulation of Non-Road Engines Under 20.2.70, 20.2.72, and 20.2.73 NMAC.

A developer must submit a Notice of Intent to NMED if the developer intends to construct a new stationary source, even a temporary one, that has a potential emission rate greater than 10 tons per year (tpy) of any regulated air contaminant or 1 tpy of lead. N.M. Code R. § 20.2.73.200(A). A developer must submit an Application for an Air Quality Construction Permit (Application) prior to constructing or operating any stationary source with a potential to emit greater than 10 pounds per hour (pph) or 25 tons per year (tpy) of any regulated air pollutant with a National or New Mexico Ambient Air Quality Standard or if the source meets any other applicability requirement contained in N.M. Code R. § 20.2.73.200(A)(1)–(6). New Mexico’s air quality regulations define “stationary source” as including “portable stationary sources,” such as nonroad engines. N.M. Code R. §§ 20.2.73.7(N), (S); 20.2.72.7(X), (EE); New Mexico Environment Department – The Regulation of Non-Road Engines Under 20.2.70, 20.2.72, and 20.2.73 NMAC.

15-NM-a.2 — Submit Notice of Intent

A developer must submit a Notice of Intent to NMED if the developer intends to construct a new stationary source, even a temporary one, that has a potential emission rate greater than 10 tons per year (tpy) of any regulated air contaminant or 1 tpy of lead. N.M. Code R. § 20.2.73.200(A).

A Notice of Intent must include, at a minimum, the following information:

  • The applicant’s name and address, the person to contact regarding the application, and the name and address of the new source or modification;
  • The date of the application;
  • A description of the new facility or modification including all operations affecting air emissions;
  • The anticipated operating schedule;
  • A map, such as a 7.5 minute United States geological survey topographic quadrangle, showing the location of the stationary source;
  • The nature and quantities of any regulated air contaminants the new source or modification will emit, including all calculations utilized to estimate emissions;
  • A description of any air pollution control device or method to be utilized, including the basis for the estimated control efficiency;
  • The stack and exhaust gas parameters for all emission points;
  • Any other relevant information as NMED may reasonably require; and
  • The signature or affirmation, under oath, of the operator, owner, or authorized representative, certifying to the best of his or her knowledge the truth of all information submitted.

N.M. Code R. § 20.2.73.200(B).

15-NM-a.3 to a.6 — Review of Notice of Intent

NMED must review the Notice of Intent within thirty (30) days of receipt of the Notice and send a certified letter to the applicant (developer) indicating either:

  • The Notice is incomplete and identifying specific additional information that is required;
  • The developer may commence construction and an Air Quality Construction Permit is not required; or
  • The developer must obtain an Air Quality Construction Permit before commencing construction.

N.M. Code R. § 20.2.73.200(C).

Note: Prior to relocating any portable stationary source, the owner or operator of the source must provide NMED with a written notice containing the date and site of the relocation at least fifteen (15) days in advance. N.M. Code R. § 20.2.73.200(E).

15-NM-a.7 to a.8 — Submit Application for Air Quality Construction Permit

A developer must submit an Application for an Air Quality Construction Permit (Application) prior to constructing or operating any stationary source with a potential to emit greater than 10 pounds per hour (pph) or 25 tons per year (tpy) of any regulated air pollutant with a National or New Mexico Ambient Air Quality Standard or if the source meets any other applicability requirement contained in N.M. Code R. § 20.2.73.200(A)(1)–(6).

An Application must contain all information required by N.M. Code R. § 20.2.72.203, and be submitted with application fees specified in N.M. Code R. § 20.2.75.

At the time the developer submits an Application, the developer must also publish public notice of the Application in accordance with N.M. Code R. § 20.2.72.203(B)(1)–(4) and provide a public service announcement to at least one radio or television station serving the municipality or county in which the source is located. N.M. Code R. § 20.2.72.203(B)(5).

The public notice must contain, at a minimum, the following information:

  • The applicant’s name and address, together with the names and addresses of all owners or operators of the facility or proposed facility;
  • The actual or estimated date that the application was or will be submitted to NMED;
  • The exact location of the facility or proposed facility;
  • A description of the process or change for which a permit is sought, including an estimate of the maximum quantities of any regulated air contaminant the source will emit after proposed construction is complete or permit is issued;
  • The maximum and standard operating schedules of the facility after completion of proposed construction or permit issuance; and
  • The current address of NMED to which comments and inquiries may be directed.

N.M. Code R. § 20.2.72.203(C)(1)–(6).

The public service announcement must contain, at a minimum, the following information:

  • The name, location, and type of business;
  • The name of the principal owner or operator;
  • The type of process or change for which a permit is sought;
  • Locations where the public notices have been posted; and
  • The address or telephone number at which comments and inquires may be directed to NMED.

N.M. Code R. § 20.2.72.203(D)(1)–(5).


15-NM-a.9 to a.11 — Review Application for Completeness and Notify Applicant

NMED must review an Application within thirty (30) days for administrative completeness. If the Application is deemed complete, NMED must send a letter to that effect by certified mail to the applicant (developer). N.M. Code R. § 20.2.72.207(A)(1). If the Application is complete, but no permit is required, NMED will inform the developer of that determination. N.M. Code R. § 20.2.72.207(A)(3).

If the Application is deemed incomplete, NMED must send a letter by certified mail to the developer stating what additional information is necessary to deem the Application complete. N.M. Code R. § 20.2.72.207(A)(2).

15-NM-a.12 to a.14 — Public Notice and Comment Period

After determining that an Application is complete, NMED must publish a public notice in a newspaper of general circulation in the area closest to the location of the source. N.M. Code R. § 20.2.72.206(A)(3). This public notice must include, at a minimum, the following information:

  • The applicant’s name and address;
  • The location and brief description of the source;
  • A summary of estimated emissions and ambient impact;
  • NMED’s preliminary intent to issue the permit, if the construction or modification requested in the Application will comply with air quality requirements, including ambient standards;
  • The location of the Application and NMED’s analysis (when available), for public review;
  • The manner in which comments or evidence may be submitted to NMED, including that persons must inform NMED in writing of their interest in the Application in order to have a 30-day period to review and comment on the analysis; and
  • A statement that any person who does not express interest in writing prior to the end of the initial 30-day comment period will not receive notification of the availability of the analysis.

N.M. Code R. § 20.2.72.206(A)(3).

NMED must also provide the above public notice by mail or electronic mail to all individuals and organizations identified on a list maintained by NMED who have indicated, in writing, a desire to receive notices of all Construction Applications issued under N.M. Code R. § 20.2.72.

In the event that any person expresses an interest in writing in the Application, NMED must also:

  • Notify each person who expressed an interest in writing in the permit application of the date and the location that NMED’s analysis was or will be available for review; and
  • Not issue the permit until at least thirty (30) days after NMED’s analysis is available for review.

N.M. Code R. § 20.2.72.206(B).

15-NM-a.15 to a.16 — Request Public Hearing (Optional)

Any person may request a public hearing during the thirty (30) day public comment period. N.M. Code R. § 20.2.72.206(B)(2). NMED must hold a public hearing if the Secretary of NMED determines there is significant public interest. N.M. Code R. § 20.2.72.206(C).

NMED must hold public hearings in the geographic area likely to be impacted by the source. N.M. Code R. § 20.2.72.206(C). If a public hearing is held, NMED must give notice of the hearing to the applicant (developer) and the public. N.M. Code R. § 20.2.72.206(C).

15-NM-a.17 to a.19 — Notify Applicant and Interested Parties of Permitting Decision

NMED must either grant, grant subject to conditions, or deny the Construction Permit within ninety (90) days after NMED deems the application administratively complete. N.M. Code R. § 20.2.72.207(B). NMED must notify the applicant (developer) of its decision by certified mail. N.M. Code R. § 20.2.72.207(E). NMED also must notify any person who participated in the permitting process of NMED’s decision and the reasons for NMED’s decision. N.M. Code R. § 20.2.72.207(E).

If NMED requires longer than ninety (90) days to take action on the Application, NMED must notify the developer by certified mail that an extension of time is necessary to process the Application and must specify, in detail, the grounds for the extension. N.M. Code R. § 20.2.72.207(C). NMED may request an extension up to ninety (90) days from the Secretary of NMED. N.M. Code R. § 20.2.72.207(C). The Secretary may grant an extension if the secretary determines that good cause exists for the extension. N.M. Code R. § 20.2.72.207(C). The Secretary must notify the developer, by certified mail, of its decision on the extension, and include information regarding the length of the extension and the reasons therefore. N.M. Code R. § 20.2.72.207(C).

15-NM-a.20 — Appeal Permitting Decision (Optional)

Any person who participated in a permitting action before NMED and who is adversely affected by such permitting action may file a petition for hearing before the Environmental Improvement Board within thirty (30) days from the date of notice of NMED’s decision. N.M. Code R. § 20.2.72.207(F). The petition for a hearing must, at a minimum:

  • Specify the portions of the permitting action to which the petitioner objects;
  • Certify that a copy of the petition has been delivered in accordance with N.M. Code R. § 20.2.72.207(F);
  • Attach a copy of the permitting action for which review is sought; and
  • If the petitioner is not the applicant (developer), the petitioner shall mail or hand-deliver a copy of the petition to the developer.

N.M. Code R. § 20.2.72.207(F).

If a timely request for a hearing is made, the Environmental Improvement Board must hold a hearing within sixty (60) days of receipt of the petition. N.M. Code R. § 20.2.72.207(G).

Unless a timely request for hearing is made, NMED’s decision is final. N.M. Code R. § 20.2.72.207(F).


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