SB0187

SENATE BILL 187

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Linda M. López

AN ACT

RELATING TO THE ENVIRONMENT; ELIMINATING LOCAL AUTHORITY TO ADMINISTER THE AIR QUALITY CONTROL ACT; REPEALING SECTIONS 74-2-4 AND 74-2-16 NMSA 1978 (BEING LAWS 1967, CHAPTER 277, SECTION 4 AND LAWS 1992, CHAPTER 20, SECTION 19, AS AMENDED).

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 a substance, including 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 emission that occurs in nature, into the outdoor atmosphere of one or more air contaminants 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.] D. "emission limitation" or "emission standard" 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.] E. "federal act" means the federal Clean Air Act, its subsequent amendments and successor provisions;

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

[H.] G. "hazardous air pollutant" means an air contaminant that has been listed 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 a local authority;

L.] H. "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.] I. "modification" means 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 a regulated air contaminant emitted by the source or that results in the emission of 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 a natural gas curtailment or emergency allocation or [an other] another lack of supply of natural gas;

[N.] J. "nonattainment area" means for 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.] K. "person" includes an individual, partnership, corporation, association, the state or political subdivision of the state and any agency, department or instrumentality of the United States and any of their officers, agents or employees;

[P.] L. "potential emission rate" means the emission rate of a source at its maximum capacity to emit a regulated air contaminant under its physical and operational design, provided any physical or operational limitation on the capacity of the source to emit a regulated air contaminant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its physical and operational design only if the limitation or the effect it would have on emissions is enforceable by the department [or the local agency] pursuant to the Air Quality Control Act or the federal act;

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

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

[S.] O. "significant deterioration" means an increase in the ambient concentrations of 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.] P. "source" means a structure, building, equipment, facility, installation or operation that emits or may emit an air contaminant;

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

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

[W.] S. "toxic air pollutant" means 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 74-2-3 NMSA 1978 (being Laws 1967, Chapter 277, Section 3, as amended) is amended to read:

"74-2-3. ENVIRONMENTAL IMPROVEMENT BOARD.--

A. In taking any action under the Air Quality Control Act, a majority of the environmental improvement board constitutes a quorum, but any action, order or decision of the environmental improvement board requires the concurrence of three members present at a meeting.

B. Except as provided in the Air Quality Control Act, the jurisdiction of the environmental improvement board extends to all areas of the state [except within the boundaries of a local authority]."

SECTION 3. Section 74-2-5 NMSA 1978 (being Laws 1967, Chapter 277, Section 5, as amended) is amended to read:

"74-2-5. DUTIES AND POWERS--ENVIRONMENTAL IMPROVEMENT BOARD [LOCAL BOARD].--

A. The environmental improvement board [or the local board] shall prevent or abate air pollution.

B. The environmental improvement board [or the local board] shall:

(1) adopt, promulgate, publish, amend and repeal rules and standards consistent with the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution, including:

(a) rules prescribing air standards within the geographic area of the environmental improvement board's jurisdiction [or the local board's jurisdiction] or any part thereof; and

(b) standards of performance that limit carbon dioxide emissions to no more than one thousand one hundred pounds per megawatt-hour [on and after January 1, 2023] for a new or existing source that is an electric generating facility with an original installed capacity exceeding three hundred megawatts and that uses coal as a fuel source; and

(2) adopt a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions within the geographic area of the environmental improvement board's jurisdiction [or the local board's jurisdiction] or any part thereof.

C. If the environmental improvement board [or the local board] determines that emissions [from sources within the environmental improvement board's jurisdiction or the local board's jurisdiction] cause or contribute to ozone concentrations in excess of ninety-five percent of the primary national ambient air quality standard for ozone promulgated pursuant to the federal act, the environmental improvement board [or the local board] shall adopt a plan, including rules, to control emissions of oxides of nitrogen and volatile organic compounds to provide for attainment and maintenance of the standard. Rules adopted pursuant to this subsection shall be limited to sources of emissions within the area of the state where the ozone concentrations exceed ninety-five percent of the primary national ambient air quality standard.

D. Rules adopted by the environmental improvement board [or the local board] may:

(1) include rules to protect visibility in mandatory class I areas to prevent significant deterioration of air quality and to achieve national ambient air quality standards in nonattainment areas; provided that the rules shall be at least as stringent as required by the federal act and federal regulations pertaining to visibility protection in mandatory class I areas, pertaining to prevention of significant deterioration and pertaining to nonattainment areas;

(2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that shall be at least as stringent as required by federal standards of performance;

(3) include rules governing emissions from solid waste incinerators that shall be at least as stringent as any applicable federal emission limitations;

(4) include rules requiring the installation of control technology for mercury emissions that removes the greater of what is achievable with best available control technology or ninety percent of the mercury from the input fuel for all coal-fired power plants, except for coal-fired power plants constructed and generating electric power and energy before July 1, 2007;

(5) require notice to the department [or the local agency] of the intent to introduce or permit the introduction of an air contaminant into the air [within the geographical area of the environmental improvement board's jurisdiction or the local board's jurisdiction]; and

(6) require any person emitting any air contaminant to:

(a) install, use and maintain emission monitoring devices;

(b) sample emissions in accordance with methods and at locations and intervals as may be prescribed by the environmental improvement board [or the local board];

(d) submit reports regarding the nature and amounts of emissions and the performance of emission control devices; and

(e) provide any other reasonable information relating to the emission of air contaminants.

E. Any rule adopted pursuant to this section shall be at least as stringent as federal law, if any, relating to control of motor vehicle emissions.

F. In making its rules, the environmental improvement board [or the local board] shall give weight it deems appropriate to all facts and circumstances, including:

(1) character and degree of injury to or interference with health, welfare, visibility and property;

(2) the public interest, including the social and economic value of the sources and subjects of air contaminants; and

(3) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved.

G. Before the environmental improvement board [or local board] adopts a rule that is more stringent than the federal act or federal regulations, or that applies to sources not subject to regulation pursuant to the federal act or regulations, the environmental improvement board [or local board] shall make a determination, based on substantial evidence and after notice and public hearing, that the proposed rule will be more protective of public health and the environment."

SECTION 4. Section 74-2-5.1 NMSA 1978 (being Laws 1992, Chapter 20, Section 5) is amended to read:

"74-2-5.1. DUTIES AND POWERS OF THE DEPARTMENT [AND THE LOCAL AGENCY].--The department [and the local agency for their respective jurisdictions] shall:

A. develop facts and make investigations and studies consistent with the Air Quality Control Act and, as required for enforcement of that act, enter at all reasonable times in or upon any private or public property, except private residences, that the department [or the local agency] has reasonable cause to believe is or will become a source contributing to air pollution and require the production of information relating to emissions that cause or contribute to air pollution. The results of any such investigations shall be reduced to writing if any enforcement action is contemplated, and a copy shall be furnished to the owner or occupants of the premises before the action is filed;

B. institute legal proceedings to compel compliance with the Air Quality Control Act or any [regulation] rule of the environmental improvement board [or the local board];

C. encourage and make every reasonable effort to obtain voluntary cooperation by the owner or occupants to preserve, restore or improve air purity;

D. consult with any person proposing to construct, install or otherwise acquire an air contaminant source, device, system or control mechanism concerning the efficiency of the device, system or mechanism or the air pollution problem that may be related to the source, device, system or mechanism; provided that consultation shall not relieve any person from compliance with the Air Quality Control Act, regulations in force pursuant to that act or any other provision of law;

E. establish a small business stationary source technical and environmental compliance assistance program, consistent with the provisions of Section 507 of the federal act;

F. accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, or from any person;

G. classify and record air contaminant sources that, in its judgment, may cause or contribute to air pollution, according to levels and types of emissions and other characteristics that relate to air pollution; provided, classifications may be for application to the entire geographical area of the department's responsibility [or the local authority's responsibility] or to any designated portion of that area and shall be made with special reference to the effects on health, economic and social factors and physical effects on property; and

H. develop and present to the environmental improvement board [or the local board] a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions in the different portions of the geographical area of the department's responsibility [or the local authority's responsibility]."

SECTION 5. Section 74-2-5.2 NMSA 1978 (being Laws 1992, Chapter 20, Section 6) is amended to read:

"74-2-5.2. STATE AIR POLLUTION CONTROL AGENCY--SPECIFIC DUTIES AND POWERS OF THE DEPARTMENT.--The department is the state air pollution control agency for all purposes under federal legislation relating to air pollution. The department shall:

A. take all action necessary to secure for the state and its political subdivisions the benefits of federal legislation;

B. advise, consult, contract with and cooperate with [local authorities] other states, the federal government and other interested persons or groups in regard to matters of common interest in the field of air quality control [and initiate cooperative action between a local authority and the department, between one local authority and another or among any combination of local authorities and the department for control of air pollution in areas having related air pollution problems that overlap the boundaries of political subdivisions]; and

C. enter into agreements and compacts with adjoining states and Indian nations, tribes or pueblos, where appropriate."

SECTION 6. Section 74-2-6 NMSA 1978 (being Laws 1967, Chapter 277, Section 6, as amended) is amended to read:

"74-2-6. ADOPTION OF [REGULATIONS] RULES--NOTICE AND HEARINGS.--

A. Any person may recommend or propose [regulations] rules to the environmental improvement board [or the local board] for adoption. The environmental improvement board [or the local board] shall determine whether to hold a hearing within sixty days of submission of a proposed [regulation] rule.

B. No [regulations] rule or emission control requirement shall be adopted until after a public hearing by the environmental improvement board [or the local board]. As used in this section, ["regulation"] "rule" includes any amendment or repeal thereof. [Hearings on regulations of nonstatewide application shall be held within that area that is substantially affected by the regulation.] Hearings on [regulations of statewide application] rules may be held in Santa Fe or within any area of the state substantially affected by the [regulation] rule.

C. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed [regulation] rule or air quality standard. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the environmental improvement board [or the local board] for advance notice of its hearings.

D. At the hearing, the environmental improvement board [or the local board] shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the environmental improvement board [or the local board].

E. The environmental improvement board [or the local board] may designate a hearing officer to take evidence in the hearing.

F. No [regulations] rule or emission control requirement adopted by the environmental improvement board [or the local board] shall become effective until thirty days after its filing under the State Rules Act."

SECTION 7. 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] rule, the environmental improvement board [or the local board] shall require:

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

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

B. [Regulations] Rules 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 information the department [or the local agency] deems necessary to determine that [regulations] rules and 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 that 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 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 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 that the permit [regulations] rules adopted [(a)] by the environmental improvement board shall include provisions governing notice to nearby states; [and

(b) by any local board shall include provisions requiring that notice be given to the department of all permit applications by any source that emits, or has a potential emission rate of, one hundred tons per year or more of any regulated air contaminant, including any 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 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) allowance for 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 determined to be complete, the department [or local agency] shall give the applicant a reasonable estimate of 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 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. Except as provided in Subsection [O] N of this section, the department [or the local agency] may deny any application for:

(1) a construction permit if it appears that the construction or modification:

(a) will not meet applicable standards, rules or requirements of the Air Quality Control Act or the federal act;

(b) will cause or contribute to air contaminant levels in excess of a national or state standard [or, within the boundaries of a local authority, applicable local ambient air quality standards]; or

(2) an operating permit if the source will not meet the applicable standards, rules or requirements pursuant to the Air Quality Control Act or the federal act.

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

(1) for a construction permit:

(a) a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the standards, rules and requirements of the Air Quality Control Act and the federal act;

(b) 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 permit application, whichever is more stringent;

(d) reasonable restrictions and limitations not relating to emission limits or emission rates; or

(e) any combination of the conditions listed in this paragraph; and

(2) for an operating permit, terms and conditions sufficient to ensure compliance with the applicable standards, rules and requirements pursuant to the Air Quality Control Act and the federal act.

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] rules and permit conditions may be met by machinery, devices or equipment otherwise available.

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

G. 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. 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 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 is made, the decision of the department [or the local agency] shall be final.

I. If a timely petition for hearing is made, the environmental improvement board [or 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 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. 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].

L. [Notwithstanding any other provision 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 source will or will not meet applicable [local] state and federal air pollution standards and regulations shall be conclusive and is binding on every other state agency and as an issue before any other state agency shall be deemed resolved in accordance with that final decision.

[M. 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 constructing or modifying any source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department.

N.] M. 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].

[O.] N. The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by [regulation] rule of the environmental improvement board, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national ambient air quality standard. The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, "best system of emissions reduction" for cotton gins means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts.

[P.] O. The department [or local agency] may deny any permit application or revoke any permit issued pursuant to the Air Quality Control Act if, within ten years immediately preceding the date of submission of the permit application, the applicant or permittee has:

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

(2) refused to disclose the information required by the provisions of the Air Quality Control Act;

(3) been convicted in any court of any state or the United States of:

(a) a felony related to environmental crime; or

(b) a crime defined by state or federal statute as involving or being in restraint of trade, price fixing, bribery or fraud;

(4) constructed or operated a facility for which a permit is sought without a permit required by the Air Quality Control Act, except when such an unpermitted facility is discovered after acquisition in the course of a timely environmental audit authorized by department [or local board] policy and except if:

(a) the operator of the facility using good engineering practices and established approved calculation methodologies estimated that the facility's emissions would not require a permit pursuant to the Air Quality Control Act; and

(b) upon discovery of the discrepancy between the calculated pre-construction maximum facility emissions and the calculated post-construction maximum facility emissions, the operator of the facility applies for the appropriate permit within thirty calendar days; or

(5) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.

[Q.] P. In making a finding under Subsection [P] O of this section, the department [or local agency] may consider aggravating and mitigating factors.

[R.] Q. If an applicant or permittee whose permit is being considered for denial or revocation on any basis provided by Subsection [P] O of this section has submitted an action plan that has been approved in writing by the secretary [or director], and plan approval includes a period of operation under a conditional permit that will allow the applicant or permittee a reasonable opportunity to demonstrate its rehabilitation, the secretary [or director] may issue a conditional permit for a reasonable period of time.

[S.] R. An applicant for a permit pursuant to the Air Quality Control Act shall file a disclosure statement with the department [or local agency] with the information listed in Subsection [P] O of this section, and on a form developed by the department. An existing permit holder shall provide such disclosure upon request by the department [or local agency]."

SECTION 8. Section 74-2-8 NMSA 1978 (being Laws 1967, Chapter 277, Section 8, as amended) is amended to read:

"74-2-8. VARIANCES.--

A. The environmental improvement board [or the local board] may grant an individual variance from the limitations prescribed under the Air Quality Control Act, any [regulation] rule of the environmental improvement board [or the local board] or any permit condition imposed by the department [or the local agency], whenever it is found, upon presentation of adequate proof:

(1) that compliance with any part of that act, any [regulation] rule of the environmental improvement board [or the local board] or any permit condition will:

(a) result in an arbitrary and unreasonable taking of property; or

(b) impose an undue economic burden upon any lawful business, occupation or activity; and

(2) that the granting of the variance will not:

(a) result in a condition injurious to health or safety; or

(b) cause or contribute to an air contaminant level in excess of any primary national ambient air quality standards.

B. [No] A variance shall not be granted pursuant to this section until the environmental improvement board [or the local board] has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges and the general public.

C. [Any] A variance or renewal [thereof] shall be granted within the requirements of Subsection A of this section and for time periods and under conditions consistent with the reasons [therefor] for the variance of renewal and within the following limitations:

(1) if the variance is granted on the ground that there are no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available;

(2) if the variance is granted on the ground that compliance with the particular requirement from which variance is sought will necessitate the taking of measures that, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the environmental improvement board [or the local board], is requisite for the taking of the necessary measures. A variance granted on the ground specified in this paragraph shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable; or

(3) if the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraphs (1) and (2) of this subsection, it shall be for not more than one year.

D. Any person seeking a variance shall do so by filing a petition for variance with the secretary [or the director] charged with implementation of the Air Quality Control Act at the site where the variance will apply. The secretary [or the director] shall promptly investigate the petition and make recommendation to [his respective] the environmental improvement board as to the disposition of the petition.

E. Upon receiving the recommendation of the secretary [or the director] on the variance, the environmental improvement board [or the local board] shall:

(1) if the secretary [or the director] favors a variance, hold a public hearing prior to the granting of any variance; and

(2) if the secretary [or the director] is opposed to the granting of the variance, hold a hearing only upon the request of the petitioner.

F. In the hearing, the burden of proof shall be upon the petitioner."

SECTION 9. Section 74-2-9 NMSA 1978 (being Laws 1971, Chapter 57, Section 1, as amended) is amended to read:

"74-2-9. JUDICIAL REVIEW--ADMINISTRATIVE ACTIONS.--

A. Any person adversely affected by an administrative action taken by the environmental improvement board [the local board] or the secretary [or the director] may appeal to the court of appeals. All appeals shall be upon the record made at the hearing and shall be taken to the court of appeals within thirty days following the date of the action.

B. For appeals of [regulations] rules, the date of the action shall be the date of the filing of the [regulation] rule by the environmental improvement board [or the local board] pursuant to the State Rules Act.

C. Upon appeal, the court of appeals shall set aside the action only if found to be:

(1) arbitrary, capricious or an abuse of discretion;

(2) not supported by substantial evidence in the record; or

(3) otherwise not in accordance with law.

D. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted:

(1) by the environmental improvement board [the local board] or the department, [or the local agency] whichever took the action being appealed; or

(2) by the court of appeals if the environmental improvement board [the local board] or the department [or the local agency] denies a stay or fails to act upon an application for a stay within sixty days after receipt of the application."

SECTION 10. Section 74-2-10 NMSA 1978 (being Laws 1992, Chapter 20, Section 11) is amended to read:

"74-2-10. EMERGENCY POWERS OF THE SECRETARY [AND THE DIRECTOR].--

A. Notwithstanding any other provision of the Air Quality Control Act, if the secretary [or the director] determines that a source or combination of sources presents an imminent and substantial endangerment to the public health or welfare or to the environment, [he] the secretary may bring suit in the district court for the county in which the source is located to restrain immediately any person causing or contributing to the alleged air pollution to stop the emission of air contaminants causing or contributing to such air pollution or to take such other action as may be necessary.

B. If it is not practicable to assure prompt protection of the public health or welfare or the environment by commencement of a civil action, the secretary [or the director] may issue orders necessary to protect the public health or welfare or the environment. An order shall be effective for a period of not more than twenty-four hours, unless the secretary [or the director] brings a civil action before the expiration of twenty-four hours. If the secretary [or the director] brings an action within that time, the order shall be effective thereafter for forty-eight hours or for such longer period as may be authorized by the court pending litigation."

SECTION 11. Section 74-2-11 NMSA 1978 (being Laws 1992, Chapter 20, Section 12) is amended to read:

"74-2-11. CONFIDENTIAL INFORMATION.--

A. Any records, reports or information obtained under the Air Quality Control Act by the department or the environmental improvement board [the local board or the local agency] shall be available to the public, except that upon a satisfactory showing to the secretary [the director] or the environmental improvement board, [the local board or the local agency] as applicable, by any person that records, reports or information, or particular parts thereof, except emission data, to which the department [the local agency] or the environmental improvement board [or the local board] has access under the Air Quality Control Act, if made public, would divulge confidential business records or methods or processes entitled to protection as trade secrets of that person, the secretary [the director] or the environmental improvement board, [or the local board] as applicable, shall consider such record, report or information, or particular portion thereof, confidential in accordance with the provisions of Section 14-2-1 NMSA 1978 and 18 U.S.C. Section 1905, except that such record, report or other information may be disclosed:

(1) to other officers, employees or authorized representatives of the department [the local agency] or the environmental improvement board [or the local board] concerned with carrying out the Air Quality Control Act;

(2) to officers, employees or authorized representatives of the United States environmental protection agency concerned with carrying out the federal act; or

(3) when relevant, in any proceeding under the Air Quality Control Act or the federal act.

B. The environmental improvement board [or the local board] shall adopt [regulations] rules to implement this section, including [regulations] rules specifying those business records entitled to treatment as confidential records."

SECTION 12. Section 74-2-11.1 NMSA 1978 (being Laws 1979, Chapter 393, Section 7, as amended) is amended to read:

"74-2-11.1. LIMITATIONS ON [REGULATIONS] RULES.--The Air Quality Control Act does not:

A. authorize the environmental improvement board [or the local board] to make any [regulation] rule with respect to any condition or quality of the outdoor atmosphere if the condition or air quality level and its effect are confined entirely within the boundaries of the industrial or manufacturing property within which the air contaminants are or may be emitted and public access is restricted within such boundaries;

B. grant to the environmental improvement board [or the local board] any jurisdiction or authority affecting the relation between employers and employees with respect to or arising out of any condition of air quality; or

C. supersede or limit the applicability of any law relating to industrial health, safety or sanitation."

SECTION 13. Section 74-2-12 NMSA 1978 (being Laws 1992, Chapter 20, Section 14, as amended) is amended to read:

"74-2-12. ENFORCEMENT--COMPLIANCE ORDERS--FIELD CITATIONS.--

A. When, on the basis of any information, the secretary [or the director] determines that a person has violated or is violating a requirement or prohibition of the Air Quality Control Act, a [regulation] rule promulgated pursuant to that act or a condition of a permit issued under that act, the secretary [or the director] may:

(1) issue a compliance order within one year after the violation becomes known by the department [or the local agency] stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for a past or current violation, or both; or

(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

B. An order issued pursuant to Subsection A of this section may include a suspension or revocation of the permit or portion thereof issued by the secretary [or the director] that is alleged to have been violated. Any penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) per day of noncompliance for each violation.

C. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the person named therein submits a written request to the secretary [or the director] for a public hearing. Upon such request, the secretary [or the director] shall promptly conduct a public hearing. The secretary [or the director] shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward the hearing officer's recommendation based thereon to the secretary, [or the director] who shall make the final decision.

D. The environmental improvement board [or the local board] may implement a field citation program through [regulations] rules establishing appropriate minor violations for which field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per day of violation may be issued by officers or employees of the department [or the local agency] as designated by the secretary [or the director].

E. A person to whom a field citation is issued pursuant to Subsection D of this section may, within a reasonable time as prescribed by [regulation] rule by the environmental improvement board, [or the local board] elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the [regulation] rule, the penalty assessment in the field citation shall be final.

F. Payment of a civil penalty required by a field citation issued pursuant to Subsection D of this section shall not be a defense to further enforcement by the department [or the local agency] to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act if the violation continues.

G. In determining the amount of a penalty to be assessed pursuant to this section, the secretary [the director] or the person issuing a field citation shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors.

H. In connection with a proceeding under this section, the secretary [or the director] may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.

I. If a person fails to comply with an administrative order, the secretary [or director] may initiate an action to suspend or revoke the permit, or portion thereof, alleged to have been violated or to commence a civil action in district court to enforce the order, or to suspend or revoke the permit, or both.

J. If a person fails to pay an assessment of a civil penalty, the secretary [or director] may commence a civil action in district court to collect the civil penalties assessed in the order.

K. Penalties collected pursuant to this section shall be deposited in the [(1) municipal or county general fund, as applicable, if the administrative order or field citation was directed to a source located within a local authority; or (2) state] general fund [if the administrative order or field citation was directed to any other source]."

SECTION 14. Section 74-2-12.1 NMSA 1978 (being Laws 1992, Chapter 20, Section 15, as amended) is amended to read:

"74-2-12.1. CIVIL PENALTY--REPRESENTATION OF DEPARTMENT [OR LOCAL AUTHORITY]--LIMITATION OF ACTIONS.--

A. A person who violates a provision of the Air Quality Control Act or a [regulation] rule, permit condition or emergency order adopted or issued pursuant to that act may be assessed a civil penalty not to exceed fifteen thousand dollars ($15,000) for each day during any portion of which a violation occurs.

B. A person who fails to comply with an administrative order issued pursuant to Section 74-2-12 NMSA 1978 may be assessed, pursuant to a court order, a civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of noncompliance with the order.

C. In an action to enforce the provisions of the Air Quality Control Act or an ordinance, [regulation] rule, permit condition or order, adopted, imposed or issued pursuant to that act, [(1)] the department shall be represented by the attorney general

[(2) a local authority that is a municipality shall be represented by the attorney of the municipality; and

(3) a local authority that is a county shall be represented by the district attorney within whose judicial district the county lies].

D. No action for civil penalty shall be commenced more than five years from the date the violation was known by the department [or the local agency]."

SECTION 15. Section 74-2-13 NMSA 1978 (being Laws 1972, Chapter 51, Section 8, as amended) is amended to read:

"74-2-13. INSPECTION.--The secretary [or the director] or an authorized representative [of either], upon presentation of [his] credentials:

A. shall have a right of entry to, upon or through any premises on which an emission source is located or on which any records required to be maintained by [regulations] rules of the environmental improvement board [the local board] or by any permit condition are located; and

B. may at reasonable times:

(1) have access to and copy any records required to be established and maintained by [regulations] rules of the environmental improvement board [or the local board] or any permit condition;

(2) inspect any monitoring equipment and method required by [regulations] rules of the environmental improvement board [the local board] or by any permit condition; and

(3) sample any emissions that are required to be sampled pursuant to [regulation] a rule of the environmental improvement board [the local board] or any permit condition."

SECTION 16. Section 74-2-14 NMSA 1978 (being Laws 1967, Chapter 277, Section 12, as amended) is amended to read:

"74-2-14. CRIMINAL PENALTIES.--

[A. Notwithstanding any other provision of the Air Quality Control Act, a local authority may prescribe penalties for violations of an ordinance:

(1) regulating open-fire burning or residential incineration; or

(2) prohibiting the removal of motor vehicle emission control devices installed as required by law and requiring the maintenance of such devices in operating condition.

B.] A. Notwithstanding any other provision of the Air Quality Control Act, it is a petty misdemeanor to violate any [regulations] rule of the environmental improvement board:

(1) regulating open-fire burning or residential incineration; or

(2) prohibiting the removal of motor vehicle emission control devices installed as required by law or requiring the maintenance of such devices in operating condition.

[C.] B. Except as provided in Subsection [D] C of this section, [any] a person who knowingly commits any of the following acts is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section

31-18-15 NMSA 1978:

(1) violation of any [regulation] rule relating to commercial or industrial incineration;

(2) violation of any [regulation] rule adopting any federal standard of performance;

(3) violation of any [regulation] rule relating to control of hazardous air pollutants; or

(4) violation of any [regulation] rule relating to control of toxic air pollutants.

[D.] C. At [any] a source required to have an operating permit pursuant to Section 502 of the federal act, [any] a person who knowingly commits any violation of any applicable standard, [regulation] rule or requirement under the Air Quality Control Act or the federal act, any term or condition of an operating permit or any emission fee or filing requirement in any operating permit [regulation] rule of the environmental improvement board [or the local board] is guilty of a fourth degree felony and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment of not more than eighteen months or both.

[E. Any] D. A person who knowingly commits any violation of a [regulation] rule of the environmental improvement board [or the local board] not listed in Subsection [B, C or D] A, B or C of this section is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.

[F. Any] E. A person who knowingly:

(1) makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any [regulation] rule adopted pursuant to that act; or

(2) falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any ordinance or [regulation] rule adopted pursuant to that act is guilty of a misdemeanor and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment for not more than twelve months or by both.

[G. Any] F. A person who knowingly releases into the ambient air any hazardous air pollutant or extremely hazardous substance listed pursuant to Section 302(a)(2) of the federal Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 1102(a)(2) that is not listed in Section 112 of the federal act and who knows at the time of the release that [he] the hazardous air pollutant or extremely hazardous substance creates a substantial danger of death or serious bodily injury to another person is guilty of a second degree felony and, upon conviction, shall be sentenced to a term of imprisonment not to exceed nine years or a fine not to exceed one hundred thousand dollars ($100,000) or both. Any person, other than an individual or a governmental entity, who commits such violation is guilty of a second degree felony and shall be fined in an amount not to exceed two hundred fifty thousand dollars ($250,000). If a conviction of any person under this subsection is for a second or subsequent violation, the maximum punishment shall be doubled with respect to both the fine and the imprisonment."

SECTION 17. TEMPORARY PROVISION--TRANSFER OF FUNCTIONS, ORDERS, PERMITS, PROPERTY, RECORDS, APPROPRIATIONS AND CONTRACTS.--

A. On July 1, 2024, all functions, orders, permits, equipment, supplies, other property, records, appropriations, money and contractual obligations of a local authority, local board or local agency authorized to administer the Air Quality Control Act before the effective date of this act are transferred to the environmental improvement board and the department of environment.

B. The rules, orders and decisions of a local authority, local board or local agency shall remain in effect until repealed or amended.

SECTION 18. REPEAL.--Sections 74-2-4 and 74-2-16 NMSA 1978 (being Laws 1967, Chapter 277, Section 4 and Laws 1992, Chapter 20, Section 19, as amended) are repealed.

SECTION 19. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2024.

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