45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO THE ENVIRONMENT; CHANGING THE REVIEW OF CERTAIN APPEALS BEFORE THE ENVIRONMENTAL IMPROVEMENT BOARD FROM A HEARING DE NOVO TO A HEARING BASED UPON THE RECORD; CHANGING THE REVIEW OF CERTAIN APPEALS BEFORE THE WATER QUALITY CONTROL COMMISSION FROM A HEARING DE NOVO TO A HEARING BASED UPON THE RECORD.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 74-2-2 NMSA 1978 (being Laws 1967, Chapter 277, Section 2, as amended) is amended to read:

"74-2-2. DEFINITIONS.--As used in the Air Quality Control Act:

A. "air contaminant" means [any] a substance, including [but not limited to] any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, micro-organisms, radioactive material, any combination thereof or any decay or reaction product thereof;

B. "air pollution" means the emission, except an emission that occurs in nature, into the outdoor atmosphere of [one or more] an air [contaminants] contaminant in quantities and of a duration that may with reasonable probability injure human health or animal or plant life or [as] may unreasonably interfere with the public welfare, visibility or the reasonable use of property;

C. "department" means the department of environment;

D. "director" means the administrative head of a local agency;

E. "emission limitation" [and] or "emission standard" [mean] means a requirement established by the environmental improvement board or the local board, the department, the local authority or the local agency or pursuant to the federal act that limits the quantity, rate or concentration, or combination thereof, of emissions of air contaminants on a continuous basis, including [any] requirements relating to the operation or maintenance of a source to assure continuous reduction;

F. "federal act" means the federal Clean Air Act, its subsequent amendments and successor provisions;

G. "federal standard of performance" means any standard of performance, emission limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412;

H. "hazardous air pollutant" means an air contaminant that has been classified as a hazardous air pollutant pursuant to the federal act;

I. "local agency" means the administrative agency established by a local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978;

J. "local authority" means any of the following political subdivisions of the state that have, by following the procedure set forth in Subsection A of Section 74-2-4 NMSA 1978, assumed jurisdiction for local administration and enforcement of the Air Quality Control Act:

(1) a county that was a class A county as of January 1, 1980; or

(2) a municipality with a population greater than one hundred thousand located within a county that was a class A county as of January 1, 1980;

K. "local board" means a municipal, county or joint air quality control board created by [any] a local authority;

L. "mandatory class I area" means any of the following areas in this state that were in existence on August 7, 1977:

(1) national wilderness areas that exceed five thousand acres in size; and

(2) national parks that exceed six thousand acres in size;

M. "modification" means [any] a physical change in, or change in the method of operation of, a source that results in an increase in the potential emission rate of [any] a regulated air contaminant emitted by the source or that results in the emission of [any] a regulated air contaminant not previously emitted, but does not include:

(1) a change in ownership of the source;

(2) routine maintenance, repair or replacement;

(3) installation of air pollution control equipment, and all related process equipment and materials necessary for its operation, undertaken for the purpose of complying with [regulations] rules adopted by the environmental improvement board or the local board or pursuant to the federal act; or

(4) unless previously limited by enforceable permit conditions:

(a) an increase in the production rate, if such increase does not exceed the operating design capacity of the source;

(b) an increase in the hours of operation; or

(c) use of an alternative fuel or raw material if, prior to January 6, 1975, the source was capable of accommodating such fuel or raw material or if use of an alternate fuel or raw material is caused by [any] an natural gas curtailment or emergency allocation or [any other] another lack of supply of natural gas;

N. "nonattainment area" means for [any] an air contaminant an area that is designated "nonattainment" with respect to that contaminant within the meaning of Section 107(d) of the federal act;

O. "person" includes an individual, partnership, corporation, association, the state or political subdivision of the state and [any] an agency, department or instrumentality of the United States and any of [their] its officers, agents or employees;

P. "permitting action" means any action taken by the department, local agency or constituent agency on a permit;

[P.] Q. "potential emission rate" means the emission rate of a source at its maximum capacity in the absence of air pollution control equipment that is not vital to production of the normal product of the source or to its normal operation;

[Q.] R. "regulated air contaminant" means [any] an air contaminant, the emission or ambient concentration of which is regulated pursuant to the Air Quality Control Act or the federal act;

[R.] S. "secretary" means the secretary of environment;

[S.] T. "significant deterioration" means [any] an increase in the ambient concentrations of [any] an air contaminant above the levels allowed by the federal act or federal regulations for that air contaminant in the area within which the increase occurs;

[T.] U. "source" means [any] a structure, building, equipment, facility, installation or operation that emits or may emit [any] an air contaminant;

[U.] V. "standard of performance" means a requirement of continuous emission reduction, including [any] a requirement relating to operation or maintenance of a source to assure continuous emission reduction;

[V.] W. "state implementation plan" means [any] a plan submitted by New Mexico to the federal environmental protection agency pursuant to 42 U.S.C. Section 7410; and

[W.] X. "toxic air pollutant" means [any] an air contaminant, except a hazardous air pollutant, classified by the environmental improvement board or the local board as a toxic air pollutant."

Section 2. Section 74-2-7 NMSA 1978 (being Laws 1972, Chapter 51, Section 4, as amended) is amended to read:

"74-2-7. PERMITS--PERMIT APPEALS TO THE ENVIRONMENTAL IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--

A. By regulation, the environmental improvement board or the local board shall require:

(1) [any] a person intending to construct or modify [any] a source, except as otherwise specifically provided by regulation, to obtain a construction permit from the department or the local agency prior to such construction or modification; and

(2) [any] a person intending to operate [any] a source for which an operating permit is required by the 1990 amendments to the federal act, except as otherwise specifically provided by regulation, to obtain an operating permit from the department or the local agency.

B. Regulations adopted by the environmental improvement board or the local board shall include at least the following provisions:

(1) requirements for the submission of relevant information, including [but not limited to] information the department or the local agency deems necessary to determine that rules, regulations [and] or standards under the Air Quality Control Act or the federal act will not be violated;

(2) specification of the deadlines for processing permit applications; provided the deadline for a final decision by the department or the local agency on a construction permit application may not exceed:

(a) ninety days after the application is determined to be administratively complete, if the application is not subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to [have] hold public hearings; or

(b) one hundred eighty days after the application is determined to be administratively complete, if the application is subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to [have] hold public hearings;

(3) that if the department or local agency fails to take final action on a construction permit application within the deadlines specified in Paragraph (2) of this subsection, the department or local agency shall notify the applicant in writing that an extension of time is required to process the application and specify in detail the grounds for the extension;

(4) a description of elements required before the department or local agency shall deem an application administratively complete;

(5) specification of the public notice, comment period and public hearing, if any, required prior to the issuance of a permit; provided the permit regulations adopted:

(a) by the environmental improvement board shall include provisions governing notice to nearby states; and

(b) by [any] a local board shall include provisions requiring that notice be given to the department of [all] a permit [applications] application by [any] a source that emits, or has a potential emission rate of, one hundred tons per year or more of [any] a regulated air contaminant, including [any] a source of fugitive emissions of each regulated air contaminant, at least sixty days prior to the date on which construction or major modification is to commence;

(6) a schedule of construction permit fees sufficient to cover the reasonable costs of:

(a) reviewing and acting upon [any] an application for such permit; and

(b) implementing and enforcing the terms and conditions of the permit, excluding [any] court costs or other costs associated with an enforcement action;

(7) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act;

(8) a method for accelerated permit processing that may be requested at the sole discretion of the applicant at the time the applicant submits a construction permit application and that:

(a) allows the department or local agency to contract with qualified outside firms to assist the department or local agency in its accelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm that does not have a conflict of interest; and

(b) establishes a process for the department or local agency to account for the expenditure of the accelerated permit processing fees;

(9) [allows for] establishment of additional permit application fees, sufficient to cover the reasonable costs of an accelerated permit application review process. Before the applicant is notified that the permit application [has been] is determined to be complete, the department or local [board] agency shall give the applicant a reasonable estimate of the costs of an accelerated permit application review process;

(10) specification of the maximum length of time for which a permit shall be valid; provided that for an operating permit such period may not exceed five years; and

(11) for an operating permit only:

(a) provisions consistent with Sections 502(b) and 505(b) of the federal act providing: 1) notice to and review and comment by the United States environmental protection agency; and 2) that if the department or local agency receives notice of objection from the United States environmental protection agency before the operating permit is issued, the department or the local agency shall not issue the permit unless it is revised and issued [under] pursuant to Section 505(c) of the federal act;

(b) provisions governing renewal of the operating permit; and

(c) specification of the conditions under which the operating permit may be terminated, modified or revoked and reissued prior to the expiration of the term of the operating permit.

C. The department or the local agency may deny [any] an application for:

(1) a construction permit if it appears that the construction or modification will not meet an applicable [requirements] requirement of the Air Quality Control Act, the federal act or [any] a rule or regulation adopted pursuant to either; or

(2) an operating permit if:

(a) the source for which the permit is sought will emit a hazardous air pollutant or [any] an air contaminant in excess of a federal standard of performance or a regulation of the environmental improvement board or the local board;

(b) it appears that the source for which the permit is sought will cause or contribute to air contaminant levels in excess of [any] a national or state standard or, within the boundaries of a local authority, applicable local ambient air quality standards; or

(c) [any other] another provision of the Air Quality Control Act or the federal act will be violated.

D. The department or the local agency may specify conditions to [any] a permit granted under this section, including:

(1) for a construction permit, a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the requirements of the Air Quality Control Act, the federal act and rules or regulations promulgated pursuant to either; and

(2) for an operating permit:

(a) imposition of individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the operating permit application, whichever is more stringent;

(b) compliance with applicable federal standards of performance;

(c) imposition of reasonable restrictions and limitations not relating to emission limits or emission rates; or

(d) any combination of the conditions listed in this paragraph.

E. This section does not authorize the department or the local agency to require the use of machinery, devices or equipment from a particular manufacturer if the federal standards of performance, state regulations [and] or permit conditions may be met by machinery, devices or equipment otherwise available.

F. The issuance of a permit does not relieve [any] a person from the responsibility of complying with the provisions of the Air Quality Control Act [and any] or an applicable [regulations] regulation of the environmental improvement board or the local board. [Any conditions] A condition placed upon a permit by the department or the local agency shall be enforceable to the same extent as a regulation of its board.

G. [Any] A person who participated in a permitting action before the department or the local agency shall be notified by the department or the local agency of the action taken and the reasons for the action. Notification of the applicant shall be by certified mail.

H. [Any] A person who participated in a permitting action before the department or the local agency [and] who is adversely affected by such permitting action may file a petition for [hearing] review before the environmental improvement board or the local board. The petition shall be made in writing to the environmental improvement board or the local board within thirty days from the date notice is given of the department's or the local agency's action. Unless a timely petition for [hearing] review is made, the decision of the department or the local agency shall be final.

I. If a timely petition for [hearing] review is made [the environmental improvement board or] to the local board, the local board shall hold a hearing within sixty days after receipt of the petition. The [environmental improvement board or the] local board shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the hearing. If the subject of the petition is a permitting action deemed by the [environmental improvement board or the] local board to substantially affect the public interest, the [environmental improvement board or the] local board shall ensure that the public receives notice of the date, time and place of the hearing. The public [in such circumstances] shall [also] be given a reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. [Any] A person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing. [J.] The [environmental improvement board or the] local board may designate a hearing officer to take evidence in the hearing. All hearings shall be recorded.

[K.] J. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the [environmental improvement board or the] local board shall sustain, modify or reverse the action of the [department or the] local agency [respectively].

K. If a timely petition for review is made to the environmental improvement board, the environmental improvement board shall hold a hearing within sixty days after receipt of the petition. The environmental improvement board shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the hearing. The environmental improvement board shall ensure that the public receives notice of the date, time and place of the hearing. A person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing. A person who participates in the hearing shall be given an opportunity to make a brief opening statement. The environmental improvement board may designate a hearing officer if evidence is to be taken at the hearing. All hearings shall be recorded.

L. The burden of proof shall be upon the petitioner. If before the department took action on the permit application there was a hearing or an opportunity for a hearing, the environmental improvement board shall not take additional evidence and the environmental improvement board's review of the decision shall be based upon the record before the department only and shall not be a de novo proceeding, except as provided in Subsection M of this section.

M. Prior to the hearing, the environmental improvement board may order the department to take additional evidence from the petitioner, other parties or the public if:

(1) before the date set for the hearing, application is made to the environmental improvement board to present additional evidence;

(2) in the application it is shown to the satisfaction of the environmental improvement board that the additional evidence is material; and

(3) in the application it is shown to the satisfaction of the environmental improvement board that there is a good reason why the additional evidence was not presented at the initial proceeding.

N. Based on additional evidence taken pursuant to Subsection M of this section, the department may modify its findings or decision. If the department modifies its findings or decision, the department shall file with the environmental improvement board the record of the additional evidence together with the modified findings or decision.

O. Based upon the record before it, the environmental improvement board shall sustain, modify or reverse the action of the department.

[L.] P. Notwithstanding [any] other [provision] provisions of law and subject to the provisions of Section 74-2-4 NMSA 1978, a final decision on a permit by the department, the environmental improvement board, the local agency, the local board or the court of appeals that a new source will or will not meet applicable local, state and federal air pollution standards, rules and regulations shall be conclusive and is binding on every [other] state agency and as an issue before [any other] another state agency shall be deemed resolved in accordance with that final decision.

[M.] Q. Subject to the provisions of Section 74-2-4 NMSA 1978, if the local board has adopted a permit regulation pursuant to this section, [persons] a person constructing or modifying [any] a new source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department.

[N.] R. Fees collected pursuant to this section shall be deposited in:

(1) the state air quality permit fund created by Section 74-2-15 NMSA 1978 if collected by the department; or

(2) a fund created pursuant to Section 74-2-16 NMSA 1978 if collected by a local agency pursuant to a permit regulation adopted by the local board pursuant to this section."

Section 3. Section 74-6-5 NMSA 1978 (being Laws 1973, Chapter 326, Section 4, as amended) is amended to read:

"74-6-5. PERMITS--CERTIFICATION--APPEALS TO COMMISSION.--

A. By regulation the commission may require persons to obtain from a constituent agency designated by the commission a permit for the discharge of [any] a water contaminant or for the disposal or re-use of septage or sludge.

B. The commission shall adopt regulations establishing procedures for certifying federal water quality permits.

C. Prior to the issuance of a permit, the constituent agency may require the submission of plans, specifications and other relevant information [that] it deems necessary.

D. The commission shall by regulation set the dates upon which applications for permits shall be filed and designate the time periods within which the constituent agency shall, after the filing of an administratively complete application for a permit, [either] grant the permit, grant the permit subject to conditions or deny the permit.

E. The constituent agency shall deny [any] an  application for a permit or deny the certification of a federal water quality permit if:

(1) the effluent would not meet applicable state or federal effluent rules, regulations, standards of performance or limitations;

(2) [any] a provision of the Water Quality Act would be violated;

(3) the discharge would cause or contribute to water contaminant levels in excess of [any] a state or federal standard. Determination of the discharge's effect on ground water shall be measured at any place of withdrawal of water for present or reasonably foreseeable future use. Determination of the discharge's effect on surface waters shall be measured at the point of discharge; or

(4) the applicant has, within the ten years immediately preceding the date of submission of the permit application:

(a) knowingly misrepresented a material fact in an application for a permit;

(b) refused or failed to disclose [any] information required under the Water Quality Act;

(c) been convicted of a felony or other crime involving moral turpitude;

(d) been convicted of a felony in any court for [any] a crime defined by state or federal law as being a restraint of trade, price-fixing, bribery or fraud;

(e) exhibited a history of willful disregard for environmental laws of any state or the United States; or

(f) had an environmental permit revoked or permanently suspended for cause under [any] an environmental [laws] law of any state or the United States.

F. The commission shall by regulation develop procedures [that] to ensure that the public, including adjacent property owners or occupants, affected governmental agencies [and any other] or another state whose water may be affected shall receive notice of each application for issuance or modification of a permit. No ruling shall be made on [any] an application for a permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing.

G. The commission may adopt regulations for the operation and maintenance of the permitted facility, including requirements, as may be necessary or desirable, that relate to continuity of operation, personnel training and financial responsibility, including financial responsibility for a corrective action.

H. Permits shall be issued for fixed terms not to exceed five years, except that for new discharges, the term of the permit shall commence on the date the discharge begins, but in no event shall the term of the permit exceed seven years from the date the permit was issued.

I. By regulation, the commission may impose reasonable conditions upon permits requiring permittees to:

(1) install, use and maintain effluent monitoring devices;

(2) sample effluents and receiving waters for [any] a known or suspected water [contaminants] contaminant in accordance with methods and at locations and intervals as may be prescribed by regulation of the commission;

(3) establish and maintain records of the nature and amounts of effluents and the performance of effluent control devices;

(4) provide [any] other information relating to the discharge or direct or indirect release of water contaminants; and

(5) notify a constituent agency of the introduction of a new water [contaminants] contaminant from a new source [and] or of a substantial change in the volume or character of a water [contaminants] contaminant being introduced from [sources] a source in existence at the time of the issuance of the permit.

J. The commission shall provide by regulation a schedule of fees for permits, not exceeding the estimated cost of investigation, [and] issuance, modification and renewal of permits. Fees collected pursuant to this section shall be deposited in the water quality management fund.

K. The issuance of a permit does not relieve [any] a person from the responsibility of complying with [the provisions] a provision of the Water Quality Act, [any] applicable regulations or water quality standards of the commission or [any] applicable federal laws, regulations or standards.

L. A permit may be terminated or modified by the constituent agency that issued the permit prior to its date of expiration for [any of] the following causes:

(1) violation of [any] a condition of the permit;

(2) obtaining the permit by misrepresentation or failure to disclose fully all relevant facts;

(3) violation of [any provisions] a provision of the Water Quality Act or [any] an applicable [regulations] regulation, standard of performance or water quality [standards] standard;

(4) violation of [any] an applicable state or federal effluent [regulations] rule, regulation or [limitations] limitation; or

(5) change in [any] a condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.

M. If the constituent agency denies, terminates or modifies a permit or grants a permit subject to condition, the constituent agency shall notify the applicant or permittee by certified mail of the action taken and the reasons.

N. A person who participated in a permitting action before a constituent agency or a person affected by a certification of a federal permit [and] who is adversely affected by such permitting action or certification may file a petition for review before the commission. The petition shall be made in writing to the commission within thirty days from the date notice is given of the constituent agency's action. Unless a timely petition for review is made, the decision of the constituent agency shall be final.

O. If a timely petition for review is made, the commission shall hold a hearing within ninety days after receipt of the petition. The commission shall notify the petitioner and the applicant or permittee if other than the petitioner by certified mail of the date, time and place of the hearing. [If the commission deems the action that is the subject of the petition to be affected with substantial public interest, it] The commission shall ensure that the public receives notice of the date, time and place of the hearing and, except as provided in Subsection Q of this section, is given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. A person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing. [In the hearing, the burden of proof shall be upon the petitioner.] A person who participates in the hearing shall be given an opportunity to make a brief opening statement. The commission may designate a hearing officer [to take] if evidence is to be taken in the hearing. [Based upon the evidence presented at the hearing, the commission shall sustain, modify or reverse the action of the constituent agency.]

P. If the petitioner requests, the hearing shall be recorded at the cost of the petitioner. Unless the petitioner requests that the hearing be recorded, the decision of the commission shall be final.

Q. The burden of proof shall be upon the petitioner. If there was an opportunity for a hearing before the constituent agency, the commission shall not take additional evidence and the commission's review of the agency's decision shall be based upon the record before the constituent agency only and shall not be a de novo proceeding, except as provided in Subsection R of this section.

R. Prior to the hearing, the commission may order the constituent agency to take additional evidence from the petitioner, other parties or the public if:

(1) before the date set for the hearing, application is made to the commission to present additional evidence;

(2) in the application it is shown to the satisfaction of the commission that the additional evidence is material; and

(3) in the application it is shown to the satisfaction of the commission that there is a good reason why the additional evidence was not presented at the initial proceeding.

S. Based on additional evidence taken pursuant to Subsection R of this section, the constituent agency may modify its findings or decision. If the constituent agency modifies its findings or decision, the agency shall file with the commission the record of the additional evidence together with the modified findings or decision.

T. Based upon the record before it, the commission shall sustain, modify or reverse the action of the constituent agency."