SENATE BILL 382

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Cynthia Nava

AN ACT

RELATING TO THE ENVIRONMENT; AMENDING A SECTION OF THE AIR QUALITY CONTROL ACT TO ALLOW THE DEPARTMENT OF ENVIRONMENT TO DENY A PERMIT APPLICATION BASED ON POOR ENFORCEMENT HISTORY.

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 APPEALS TO THE ENVIRONMENTAL IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--

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

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

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

                     (b) by any 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 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

                     (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] the 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. 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. 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 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. The department or local agency may deny any permit application or modify, suspend or revoke any permit issued pursuant to the Air Quality Control Act if the applicant or permittee has:

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

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

                (3) been convicted in any court, within ten years immediately preceding the date of submission of the permit application, 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) exhibited a history of willful disregard for environmental laws of any state or the United States; or

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

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

          R. An applicant for a permit issued pursuant to the Air Quality Control Act shall file a disclosure statement with the department with the information required, and on a form developed, by the department in cooperation with the department of public safety at the same time the applicant files the application for a permit pursuant to Section 74-2-7 NMSA 1978.

          S. Upon the request of the department, the department of public safety shall prepare and transmit to the department an investigative report on the applicant based in part upon the disclosure statement. The report shall be prepared and transmitted within ninety days after the receipt of a copy of an applicant's disclosure statement from the department. Upon good cause, the ninety-day period may be extended for a reasonable period of time by the department.

          T. In preparing the investigative report, the department of public safety may request and receive criminal history information on the applicant from the federal bureau of investigation or any other law enforcement agency or organization. While the investigative report is being prepared by the department of public safety, the department may also request information regarding any person who will be or could reasonably be expected to be involved in management activities of the permitted facility or any person who has a controlling interest in a permitted facility. The department of public safety shall maintain confidentiality regarding the information received from a law enforcement agency as may be imposed by that agency as a condition for providing that information to the department of public safety.

          U. All persons required to file a disclosure shall provide any assistance or information requested by the department of public safety or the department and shall cooperate in any inquiry or investigation conducted by the department of public safety or any inquiry, investigation or hearing conducted by the department. If a person required to file a disclosure statement refuses to comply with a formal request to answer an inquiry or produce information, evidence or testimony, the application of the applicant or the permit of the permittee may be denied or revoked by the department.

          V. If any of the information required to be included in the disclosure statement changes, or if any information should be added after filing the statement, the person required to file it shall provide that information in writing to the department within thirty days after the change or addition. Failure to provide the information within thirty days may constitute the basis for the revocation or denial of an application for any permit issued or applied for in accordance with Section 74-2-7 NMSA 1978, but only if, prior to any denial or revocation, the department notifies the applicant or permittee of the department's intention to do so and gives the applicant or permittee fourteen days from the date of the notice to explain why the information was not provided within the required thirty-day period. The department shall consider this information when determining whether to revoke or deny the permit.

          W. A person shall not be required to submit the disclosure statement required by this section if the person is:

                (1) the United States or any agency or instrumentality of the United States;

                (2) a state or any agency or political subdivision of a state; or

                (3) a corporation or an officer, director or shareholder of the corporation and the corporation:

                     (a) has on file and in effect with the federal securities and exchange commission a registration statement required under Section 5, Chapter 38, Title 1 of the federal Securities Act of 1933, as amended; and

                     (b) submits to the department with the application for a permit evidence of the registration described in Subparagraph (a) of this paragraph and a copy of the corporation's most recent annual form 10-K or an equivalent report."

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