46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO THE ENVIRONMENT; AMENDING THE AIR QUALITY CONTROL ACT TO PROVIDE FOR APPEALS TO THE ENVIRONMENTAL IMPROVEMENT BOARD BASED ON THE RECORD OF A PUBLIC HEARING.

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

Section 1. Section 74-2-7 NMSA 1978 (being Laws 1972, Chapter 51, Section 4, as amended) is amended to read:

"74-2-7. PERMITS--PERMIT REVIEW BY THE ENVIRONMENTAL IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--

A. By regulation, 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, 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, to obtain an operating permit from the department or the local agency.

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

(1) requirements for the submission of relevant information, including information the department or the local agency deems necessary to determine that regulations 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 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 and comment period [and public hearing, if any] on the application or draft permit required prior to the issuance of a permit; provided that the permit regulations adopted:

(a) by the environmental improvement board shall include provisions [governing notice to nearby states] that ensure that the public, adjacent landowners, affected governmental agencies, area Indian nations, tribes or pueblos and any other state whose air may be affected are provided notice; 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) an opportunity for a public hearing before the department, at which all interested persons shall be given a reasonable opportunity to submit evidence, data, views and arguments orally or in writing on the application or draft permit and to examine witnesses testifying at the hearing. The hearing shall be recorded. Any person submitting evidence, data, views or arguments shall be subject to examination at the hearing;

[(6)] (7) 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)] (8) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act;

[(8)] (9) 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)] (10) 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)] (11) 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)] (12) 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. 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

(c) will violate any other provision of the Air Quality Control Act or the federal act; and

(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;

(c) compliance with applicable federal standards of performance;

(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 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 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 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] review before the environmental improvement board or hearing before 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 and not subject to judicial review. The petition shall:

(1) 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;

(2) include a statement of the issues to be raised and the relief sought; and

(3) be served on all other persons submitting evidence, data, views or arguments in the proceeding before the department or the local agency.

I. If a timely petition [for hearing] is made, the environmental improvement board or the local board shall [hold a hearing] consider the petition 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 review or 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 review or 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. For review by the environmental improvement board, [or] the board shall review the record compiled before the department, including the transcript of any public hearing held on the application or draft permit, and shall allow any party to submit arguments. The board may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the board. The board shall consider and weigh only the evidence contained in the record before the department and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the department. The board shall keep a record of the review. Based on the review of the evidence, the arguments of the parties and the recommendation of the hearing officer, if any, the board shall sustain, modify or reverse the action of the department.

K. Prior to the date set for review, if the environmental improvement board determines that proposed additional evidence, data, views or arguments are relevant and there was good reason for the failure to present the evidence, data, views or arguments in the proceeding before the constituent agency, the board shall order that additional evidence, data, views or arguments be taken by the department. Based on the additional evidence, data, views or arguments, the department may revise the permitting action and shall promptly file with the environmental improvement board the additional evidence, data, views or arguments received and the action taken.

L. For review by the local board, the board shall hold a hearing on the petition. The local board may designate a hearing officer to take evidence in the hearing and recommend a decision to the board. All interested persons shall be given a reasonable opportunity to submit evidence, data, views and arguments orally or in writing, and to examine witnesses testifying at the hearing. Any person submitting evidence, data, views or arguments shall be subject to examination at 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].

M. The environmental improvement board or the local board shall notify the petitioner and all other participants in the review of the action taken and the reasons for the action. [L.] N. 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.] O. 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.] P. Fees collected pursuant to this section shall be deposited in:

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

(2) a fund created pursuant to Section

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

Section 2. 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, the secretary or the director, other than the adoption of a regulation, may appeal to the district court [of appeals] pursuant to the provisions of Section 39-3-1.1 NMSA 1978. All appeals shall be upon the record made at the hearing and shall be taken to the district court [of appeals] within thirty days following the date of the action.

B. [For appeals of regulations, the date of the action shall be the date] A person who is or may be adversely affected by a regulation adopted by the environmental improvement board or the local board may appeal the regulation by filing a notice of appeal with the court of appeals within thirty days of the filing of the regulation 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] regulation 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, the [department] secretary or the [local agency] director, whichever took the action being appealed; or

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