0001| SENATE BILL 187
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| MICHAEL S. SANCHEZ
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO THE ENVIRONMENT; MODIFYING THE AIR QUALITY CONTROL
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0012| ACT.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. Section 74-2-2 NMSA 1978 (being Laws 1967,
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0016| Chapter 277, Section 2, as amended) is amended to read:
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0017| "74-2-2. DEFINITIONS.--As used in the Air Quality
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0018| Control Act:
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0019| A. "air contaminant" means any substance,
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0020| including [but not limited to] any particulate matter, fly
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0021| ash, dust, fumes, gas, mist, smoke, vapor, microorganisms,
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0022| radioactive material, including source material, special
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0023| nuclear material and byproduct material, as defined by the
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0024| federal Atomic Energy Act of 1954, as amended, or any
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0025| combination [thereof] or any decay or reaction product
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0001| thereof;
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0002| B. "air pollution" means the emission, except
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0003| emission that occurs in nature, into the outdoor atmosphere of
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0004| one or more air contaminants in quantities and of a duration
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0005| that may with reasonable probability injure human health or
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0006| animal or plant life or as may unreasonably interfere with the
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0007| public welfare, visibility or the reasonable use of property;
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0008| C. "department" means the department of
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0009| environment;
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0010| D. "director" means the administrative head of a
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0011| local agency;
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0012| E. "emission limitation" [and] or "emission
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0013| standard" [mean] means a requirement established by the
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0014| environmental improvement board or the local board, the
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0015| department, the local authority or the local agency or
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0016| [pursuant to the federal act] by the federal environmental
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0017| protection agency that limits the quantity, rate or
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0018| concentration, or combination thereof, of emissions of air
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0019| contaminants on a continuous basis, including any requirements
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0020| relating to the operation or maintenance of a source to
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0021| [assure] ensure continuous reduction and any design,
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0022| equipment, work practice or operational standard adopted
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0023| pursuant to the Air Quality Control Act or the federal act;
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0024| F. "federal act" means the federal Clean Air Act,
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0025| 42 U.S.C. Sections 7401, et seq., its subsequent amendments
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0001| and successor provisions;
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0002| G. "federal standard of performance" means any
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0003| standard of performance, emission limitation or emission
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0004| standard adopted pursuant to [42 U.S.C. Section 7411 or
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7412] Section 111 or 112 of the federal act;
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0006| H. "hazardous air pollutant" means an air
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0007| contaminant that has been [classified] listed as a
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0008| hazardous air pollutant pursuant to Section 112 (b) of the
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0009| federal act;
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0010| I. "local agency" means the administrative agency
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0011| established by a local authority pursuant to Paragraph (2) of
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0012| Subsection A of Section 74-2-4 NMSA 1978;
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0013| J. "local authority" means any of the following
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0014| political subdivisions of the state that have, by following
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0015| the procedure set forth in Subsection A of Section 74-2-4 NMSA
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0016| 1978, assumed jurisdiction for local administration and
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0017| enforcement of the Air Quality Control Act:
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0018| (1) a county that was a class A county as of
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0019| January 1, 1980; or
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0020| (2) a municipality with a population greater
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0021| than one hundred thousand located within a county that was a
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0022| class A county as of January 1, 1980;
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0023| K. "local board" means a municipal, county or
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0024| joint air quality control board created by any local
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0025| authority;
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0001| L. "mandatory class I area" means any of the
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0002| following areas in this state that were in existence on August
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0003| 7, 1977:
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0004| (1) national wilderness areas that exceed
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0005| five thousand acres in size; and
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0006| (2) national parks that exceed six thousand
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0007| acres in size;
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0008| M. "modification" means any physical change in, or
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0009| change in the method of operation of, a source that results in
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0010| an increase in the emission rate or the potential emission
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0011| rate of any regulated air contaminant emitted by the source or
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0012| that results in the emission of any regulated air contaminant
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0013| not previously emitted, but does not include:
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0014| (1) a change in ownership of the source;
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0015| (2) routine maintenance, repair or
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0016| replacement;
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0017| (3) installation of air pollution control
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0018| equipment, and all related process equipment and materials
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0019| necessary for its operation, undertaken for the purpose of
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0020| complying with regulations adopted by the environmental
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0021| improvement board or the local board or [pursuant to the
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federal act] by the federal environmental protection
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0023| agency; or
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0024| (4) unless previously limited by enforceable
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0025| permit conditions:
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0001| (a) an increase in the production rate,
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0002| if such increase does not exceed the operating design capacity
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0003| of the source;
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0004| (b) an increase in the hours of
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0005| operation; or
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0006| (c) use of an alternative fuel or raw
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0007| material if, prior to January 6, 1975, the source was capable
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0008| of accommodating such fuel or raw material or if use of an
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0009| alternate fuel or raw material is caused by any natural gas
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0010| curtailment or emergency allocation or any other lack of
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0011| supply of natural gas;
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0012| N. "nonattainment area" means for any air
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0013| contaminant an area that is designated "nonattainment" with
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0014| respect to that contaminant within the meaning of Section
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0015| 107(d) of the federal act;
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0016| O. "person" includes an individual, partnership,
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0017| corporation, association, the state or political subdivision
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0018| of the state and any agency, department or instrumentality of
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0019| the United States and any of their officers, agents or
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0020| employees;
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0021| P. "potential emission rate" means the emission
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0022| rate of a source at its maximum capacity to emit a regulated
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0023| air contaminant under its physical and operational design in
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0024| the absence of air pollution control equipment that is not
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0025| vital to production of the normal product of the source or to
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0001| its normal operation. Any physical or operational limitation
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0002| on the capacity of the source to emit a regulated air
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0003| contaminant, including air pollution control equipment not
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0004| vital to production of the normal product or to normal
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0005| operation, and restrictions on hours of operation or on the
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0006| type or amount of material combusted, stored or processed,
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0007| shall be treated as part of its physical and operational
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0008| design if the limitation or the effect it would have on
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0009| emissions is enforceable pursuant to the Air Quality Control
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0010| Act or is federally enforceable;
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0011| Q. "regulated air contaminant" means any air
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0012| contaminant, the emission or ambient concentration of which is
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0013| regulated pursuant to the Air Quality Control Act or the
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0014| federal act;
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0015| R. "secretary" means the secretary of environment;
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0016| S. "significant deterioration" means any increase
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0017| in the ambient concentrations of any air contaminant above the
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0018| levels allowed by the federal act or federal regulations for
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0019| that air contaminant in the area within which the increase
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0020| occurs;
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0021| T. "source" means any structure, building,
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0022| equipment, facility, installation or operation that emits or
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0023| may emit any air contaminant;
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0024| U. "standard of performance" means a requirement
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0025| of continuous emission reduction, including any requirement
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0001| relating to operation or maintenance of a source to [assure]
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0002| ensure continuous emission reduction;
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0003| V. "state implementation plan" means any plan
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0004| submitted by New Mexico to the federal environmental
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0005| protection agency pursuant to [42 U.S.C. Section 7410]
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0006| Section 110 of the federal act; and
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0007| W. "toxic air pollutant" means any air
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0008| contaminant, except a hazardous air pollutant, classified by
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0009| the environmental improvement board or the local board as a
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0010| toxic air pollutant."
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0011| Section 2. Section 74-2-7 NMSA 1978 (being Laws 1972,
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0012| Chapter 51, Section 4, as amended) is amended to read:
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0013| "74-2-7. PERMITS--PERMIT APPEALS TO THE ENVIRONMENTAL
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0014| IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--
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0015| A. By regulation, the environmental improvement
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0016| board or the local board shall require:
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0017| (1) any person intending to construct or
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0018| modify any source, except as otherwise specifically provided
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0019| by regulation, to obtain a construction permit from the
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0020| department or the local agency prior to such construction or
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0021| modification; and
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0022| (2) any person intending to operate any
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0023| source for which an operating permit is required by [the 1990
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amendments to] the federal act, except as otherwise
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0025| specifically provided by regulation, to obtain an operating
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0001| permit from the department or the local agency.
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0002| B. Regulations adopted by the environmental
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0003| improvement board or the local board shall include at least
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0004| the following [provisions]:
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0005| (1) requirements for permit applications,
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0006| including requirements for the submission of:
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0007| (a) relevant information [including
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but not limited to information] the department or the local
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0009| agency deems necessary to [ensure that] determine: 1)
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0010| whether the applicable standards, regulations and [standards
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under] requirements pursuant to the Air Quality Control Act
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0012| [or] and the federal act will [not] be violated; and 2)
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0013| the amount of applicable fees; and
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0014| (b) for permit applications that
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0015| request terms and conditions, information to support the terms
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0016| and conditions;
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0017| (2) specification of the deadlines for
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0018| processing permit applications; provided the deadline for a
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0019| final decision by the department or the local agency on a
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0020| construction permit application may not exceed:
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0021| (a) one hundred eighty days after the
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0022| application is determined to be complete, if the application
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0023| is not [affected by requirements for prevention of] subject
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0024| to regulations to prevent significant deterioration of air
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0025| quality; or
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0001| (b) two hundred forty days after the
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0002| application is determined to be complete, if the application
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0003| is [affected by requirements for prevention of] subject to
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0004| regulations to prevent significant deterioration of air
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0005| quality;
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0006| (3) specification of the public notice,
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0007| comment period and public hearing, if any, required prior to
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0008| the issuance of a permit; provided the [permit] regulations
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0009| adopted:
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0010| (a) by the environmental improvement
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0011| board shall include provisions governing notice to nearby
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0012| states; and
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0013| (b) by any local board shall include
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0014| provisions requiring that notice be given to the department of
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0015| all permit applications by any source that emits, or has a
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0016| potential emission rate of, one hundred tons per year or more
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0017| of any regulated air contaminant, including any source of
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0018| fugitive emissions of each regulated air contaminant, at least
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0019| sixty days prior to the date on which construction or major
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0020| modification is to commence;
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0021| (4) a schedule of construction permit fees
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0022| sufficient to cover:
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0023| (a) the reasonable costs of reviewing
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0024| and acting upon any application for such permit; and
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0025| (b) the reasonable costs of
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0001| implementing and enforcing the terms and conditions of the
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0002| permit, excluding any court costs or other costs associated
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0003| with an enforcement action;
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0004| (5) a schedule of emission fees consistent
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0005| with the provisions of Section 502(b)(3) of [the 1990
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amendments to] the federal act;
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0007| (6) specification of the maximum length of
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0008| time for which a permit shall be valid; provided that for an
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0009| operating permit, such period may not exceed five years;
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0010| [and]
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0011| (7) for an operating permit only:
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0012| (a) provisions consistent with Sections
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0013| 502(b) and 505(b) of the federal act providing: 1) notice to
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0014| and review and comment by the [United States] federal
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0015| environmental protection agency; and 2) that if the department
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0016| or local agency receives notice of objection from the [United
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States] federal environmental protection agency before the
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0018| operating permit is issued, the department or the local agency
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0019| shall not issue the permit unless it is revised and issued
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0020| under Section 505(c) of the federal act;
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0021| (b) provisions governing renewal of the
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0022| operating permit; and
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0023| (c) specification of the conditions
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0024| under which the operating permit may be terminated, modified
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0025| or revoked and reissued prior to the expiration of the term of
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0001| the operating permit; and
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0002| (8) for construction permits only,
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0003| specification of the conditions under which the construction
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0004| permit may be terminated, modified or revoked.
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0005| C. The department or the local agency may deny any
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0006| application for:
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0007| (1) a construction permit if it appears that
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0008| the construction or modification:
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0009| (a) will not meet applicable
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0010| standards, regulations or requirements [of] pursuant to
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0011| the Air Quality Control Act or the federal act; [or any
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regulation adopted pursuant to either; or
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(2) an operating permit if:
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(a) the source for which the permit is
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sought will emit a hazardous air pollutant or any air
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contaminant in excess of a federal standard of performance or
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a regulation of the environmental improvement board or the
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local board]
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0019| (b) [it appears that the source for
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which the permit is sought] will cause or contribute to air
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0021| contaminant levels in excess of any national or state ambient
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0022| air quality standard or, within the boundaries of a local
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0023| authority, applicable local ambient air quality standards; or
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0024| (c) will violate any other provision
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0025| of the Air Quality Control Act or the federal act; [will be
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violated] and
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0002| (2) an operating permit if the source will
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0003| not meet the applicable standards, regulations or requirements
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0004| under the Air Quality Control Act or the federal act.
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0005| D. The department or the local agency may specify
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0006| terms and conditions to any permit granted under this
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0007| section, including:
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0008| (1) for a construction permit:
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0009| (a) a requirement that such source
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0010| install and operate control technology, determined on a case-
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0011| by-case basis, sufficient to meet the applicable standards,
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0012| regulations and requirements [of] pursuant to the Air
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0013| Quality Control Act and the federal act; [and regulations
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promulgated pursuant to either; and
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(2) for an operating permit:
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(a) imposition of] (b) individual
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0017| emission limits, determined on a case-by-case basis, but only
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0018| as restrictive as necessary to [meet the] ensure compliance
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0019| with the applicable standards, regulations and requirements
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0020| [of] pursuant to the Air Quality Control Act and the
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0021| federal act or the emission rate specified in the
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0022| [operating] permit application, whichever is more stringent;
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0023| (c) at the request of the applicant,
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0024| emission limitations and other conditions that are more
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0025| stringent than necessary to ensure compliance with the
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0001| applicable standards, regulations and requirements pursuant to
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0002| the Air Quality Control Act and the federal act, including
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0003| enforceable conditions to limit the potential emission rate of
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0004| the source;
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0005| [(b)] (d) compliance with
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0006| applicable federal standards of performance;
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0007| [(c) imposition of] (e) reasonable
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0008| restrictions and limitations not relating to emission limits
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0009| or emission rates; or
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0010| [(d)] (f) any combination of the
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0011| terms and conditions listed above; and
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0012| (2) for an operating permit, terms and
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0013| conditions sufficient to ensure compliance with the applicable
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0014| standards, regulations and requirements pursuant to the Air
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0015| Quality Control Act and the federal act, including pertinent
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0016| terms and conditions in a construction permit, as determined
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0017| by the department or the local agency.
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0018| E. This section does not authorize the department
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0019| or the local agency to require the use of machinery, devices
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0020| or equipment from a particular manufacturer if the federal
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0021| standards of performance, state regulations and permit
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0022| conditions may be met by machinery, devices or equipment
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0023| otherwise available.
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0024| F. The issuance of a permit does not relieve any
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0025| person from the responsibility of complying with the
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0001| provisions of the Air Quality Control Act and any applicable
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0002| regulations of the environmental improvement board or the
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0003| local board. Any terms or conditions [placed upon]
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0004| specified in a permit by the department or the local agency
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0005| shall be enforceable to the same extent as a regulation of its
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0006| board.
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0007| G. Any person who participated in a permitting
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0008| action before the department or the local agency shall be
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0009| notified by the department or the local agency of the action
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0010| taken and the reasons for the action. Notification of the
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0011| applicant shall be by certified mail.
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0012| H. Any person who participated in a permitting
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0013| action before the department or the local agency and who is
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0014| adversely affected by such permitting action may file a
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0015| petition for hearing before the environmental improvement
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0016| board or the local board. The petition shall be made in
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0017| writing to the environmental improvement board or the local
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0018| board within thirty days from the date notice is given of the
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0019| department's or the local agency's action. Unless a timely
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0020| [request] petition for hearing is made, the decision of
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0021| the department or the local agency shall be final.
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0022| I. If a timely petition for hearing is made, the
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0023| environmental improvement board or the local board shall hold
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0024| a hearing within ninety days after receipt of the petition.
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0025| The environmental improvement board or the local board shall
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0001| notify the petitioner and the applicant or permittee, if other
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0002| than the petitioner, by certified mail of the date, time and
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0003| place of the hearing. If the subject of the petition is a
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0004| permitting action deemed by the environmental improvement
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0005| board or the local board to substantially affect the public
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0006| interest, the environmental improvement board or the local
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0007| board shall ensure that the public receives notice of the
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0008| date, time and place of the hearing. The public in such
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0009| circumstances shall also be given a reasonable opportunity to
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0010| submit data, views or arguments orally or in writing and to
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0011| examine witnesses testifying at the hearing. Any person
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0012| submitting data, views or arguments orally or in writing shall
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0013| be subject to examination at the hearing.
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0014| J. The environmental improvement board or the
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0015| local board may designate a hearing officer to take evidence
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0016| in the hearing. All hearings shall be recorded.
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0017| K. The burden of proof shall be upon the
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0018| petitioner. Based upon the evidence presented at the hearing,
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0019| the environmental improvement board or the local board shall
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0020| sustain, modify or reverse the action of the department or the
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0021| local agency respectively.
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0022| L. Notwithstanding any other provision of law and
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0023| subject to the provisions of Section 74-2-4 NMSA 1978, a final
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0024| decision on a permit by the department, the environmental
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0025| improvement board, the local agency, the local board or the
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0001| court of appeals that a [new] source will or will not meet
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0002| applicable local, state and federal air pollution standards
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0003| and regulations shall be conclusive and is binding on every
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0004| other state agency and as an issue before any other state
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0005| agency shall be deemed resolved in accordance with that final
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0006| decision.
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0007| M. Subject to the provisions of Section 74-2-4
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0008| NMSA 1978, if the local board has adopted a permit regulation
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0009| pursuant to this section, persons [constructing or modifying
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any new source] intending to construct or modify a source or
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0011| to operate a source for which a construction permit or an
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0012| operating permit is required within the boundaries of the
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0013| local authority shall obtain a permit from the local agency
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0014| and not from the department.
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0015| N. Fees collected pursuant to this section shall
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0016| be deposited in:
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0017| (1) the state air quality permit fund created
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0018| by Section 74-2-15 NMSA 1978 if collected by the department;
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0019| or
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0020| (2) a fund created pursuant to Section
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0021| 74-2-16 NMSA 1978 if collected by a local agency pursuant to a
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0022| permit regulation adopted by the local board pursuant to this
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0023| section."
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0024| Section 3. TEMPORARY PROVISION--EFFECT OF EXISTING
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0025| REGULATIONS.--A regulation of the environmental improvement
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0001| board or a local board that is inconsistent with this 1998 act
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0002| shall remain in full force and effect until amended or
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0003| repealed.
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