45th legislature - STATE OF NEW MEXICO - first session, 2001
RELATING TO THE ENVIRONMENT; AMENDING THE AIR QUALITY CONTROL ACT; REPEALING LOCAL AUTHORITY, LOCAL BOARD AND LOCAL AGENCY; CREATING REGIONAL AUTHORITY, REGIONAL BOARD AND REGIONAL AGENCY; REQUIRING A REGIONAL TECHNICAL APPEALS BOARD FOR PERMIT APPEALS FROM DECISIONS BY THE REGIONAL AGENCY; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 74-2-2 NMSA 1978 (being Laws 1967, Chapter 277, Section 2, as amended) is amended to read:
"74-2-2. DEFINITIONS.--As used in the Air Quality Control Act:
A. "air contaminant" means any substance, including but not limited to any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, micro-organisms, radioactive material, any combination thereof or any decay or reaction product thereof;
B. "air pollution" means the emission, except 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] the regional agency or the director's designee;
E. "emission limitation" [and] or "emission
standard" [mean] means a requirement established by the
environmental improvement board or the [local] regional board,
the department, the [local] regional authority or the [local]
regional agency or pursuant to the federal act that limits the
quantity, rate or concentration, or combination thereof, of
emissions of air contaminants on a continuous basis, including
any requirements relating to the operation or maintenance of a
source to assure continuous reduction;
F. "federal act" means the federal Clean Air Act, its subsequent amendments and successor provisions;
G. "federal standard of performance" means any standard of performance, emission limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412;
H. "hazardous air pollutant" means an air contaminant that has been classified as a hazardous air pollutant pursuant to the federal act;
[I. "local agency" means the administrative agency
established by a local authority pursuant to Paragraph (2) of
Subsection A of Section 74-2-4 NMSA 1978;
J. "local authority" means any of the following
political subdivisions of the state that have, by following
the procedure set forth in Subsection A of Section 74-2-4 NMSA
1978, assumed jurisdiction for local administration and
enforcement of the Air Quality Control Act:
(1) a county that was a class A county as of
January 1, 1980; or
(2) a municipality with a population greater
than one hundred thousand located within a county that was a
class A county as of January 1, 1980;
K. "local board" means a municipal, county or
joint air quality control board created by any local
authority;
L.] I. "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.] J. "modification" means any physical change
in, or change in the method of operation of, a source that
results in an increase in the potential emission rate of any
regulated air contaminant emitted by the source or that
results in the emission of any 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 adopted by the environmental
improvement board or the [local] regional board or pursuant to
the federal act; or
(4) unless previously limited by enforceable permit conditions:
(a) an increase in the production rate, if such increase does not exceed the operating design capacity of the source;
(b) an increase in the hours of operation; or
(c) use of an alternative fuel or raw material if, prior to January 6, 1975, the source was capable of accommodating such fuel or raw material or if use of an alternate fuel or raw material is caused by any natural gas curtailment or emergency allocation or any other lack of supply of natural gas;
[N.] K. "nonattainment area" means for any 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.] L. "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.] M. "potential emission rate" means the
emission rate of a source at its maximum capacity in the
absence of air pollution control equipment that is not vital
to production of the normal product of the source or to its
normal operation;
N. "region two" means the geographical area comprising Bernalillo, Sandoval and Valencia counties and all of air quality control region two as defined and established by the state implementation plan approved by the federal environmental protection agency;
O. "regional agency" means the administrative agency designated by the largest municipality in region two to administer and enforce the Air Quality Control Act within the boundaries of the regional authority;
P. "regional authority" means the governments of the three counties and the largest municipality within region two that are authorized by the Air Quality Control Act to administer and enforce that act within region two;
Q. "regional board" means the joint air quality control board authorized by the Air Quality Control Act to administer and enforce that act within region two;
[Q.] R. "regulated air contaminant" means any air
contaminant, the emission or ambient concentration of which is
regulated pursuant to the Air Quality Control Act or the
federal act;
[R.] S. "secretary" means the secretary of
environment;
[S.] T. "significant deterioration" means any
increase in the ambient concentrations of any air contaminant
above the levels allowed by the federal act or federal
regulations for that air contaminant in the area within which
the increase occurs;
[T.] U. "source" means any structure, building,
equipment, facility, installation or operation that emits or
may emit any air contaminant;
[U.] V. "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.] W. "state implementation plan" means any plan
submitted by New Mexico to the federal environmental
protection agency pursuant to 42 U.S.C. Section 7410; and
[W.] X. "toxic air pollutant" means any air
contaminant, except a hazardous air pollutant, classified by
the environmental improvement board or the [local] regional
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] regional authority."
Section 3. A new section of the Air Quality Control Act, Section 74-2-3.1 NMSA 1978, is enacted to read:
"74-2-3.1. [NEW MATERIAL] REGIONAL BOARD--CREATION-- ORGANIZATION.--
A. There is created the "regional board". The regional board shall serve as a joint board within region two, comprising Bernalillo, Sandoval and Valencia counties, and shall have authority and jurisdiction to exercise the same functions pertaining to air quality as the functions delegated by the Air Quality Control Act to the environmental improvement board, except any functions reserved exclusively for the environmental improvement board.
B. In connection with any proceeding pursuant to this section, the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may promulgate rules for discovery procedures.
C. The regional board shall consist of nine members who shall serve four-year terms. All members shall be selected for their concerns about and commitment to the local ambient air quality. Selections may be made from a broad range of persons representing the public interest and who may be experienced or trained in disciplines, including natural sciences, medicine and health, engineering or physics, humanities, social studies, finance, law, education, business or industry. Each regional board member shall be a resident of region two. The county manager for each of the three counties in region two shall appoint one member each. The mayor of the largest municipality in each of the three counties in region two shall appoint one member each, with the advice and consent of the respective city councils. The governor shall appoint the three remaining members of the regional board. The three members appointed by the governor shall be: one engineer licensed to practice in New Mexico; one person with a minimum of a bachelor of science degree from an accredited four-year college and an additional two years of experience as a medical professional; and one person with a law degree who is licensed to practice in New Mexico. No later than June 1, 2002, the applicable counties and municipalities and the governor shall provide in writing to the local agency the names, qualifications and contact information regarding the nine appointees to the initial regional board. If a county or municipality or the governor fails to appoint a member by June 1, 2002, the director may appoint a qualifying regional board member.
D. A majority of the nine members of the regional board shall be public interest members who represent the public interest and do not derive any significant portion of their income from persons subject to or who appear before the regional board on issues related to the federal act or the Air Quality Control Act.
E. Regarding any matter to be heard or decided by the regional board pursuant to the Air Quality Control Act, if there are fewer members available than are necessary to hear or decide a matter, the director shall ask the political subdivision or the governor who appointed the absent or disqualified board members to appoint temporary board members to replace all absent and disqualified board members. Each temporary regional board member shall meet all of the qualifications required for appointment as a regular regional board member.
F. No regional board member shall serve more than two consecutive terms. Members whose terms expire may continue to serve until a successor member is appointed. Service for a partial term of greater than two years constitutes a term for the purpose of determining the maximum consecutive number of terms.
G. The terms of the members of the regional board shall be staggered. The three members appointed by the three counties in region two and the two municipal members appointed from the two counties with the largest population in region two shall have initial terms of four years each. The remaining four members shall have initial terms of three years each. A current member of the local board, as defined by prior versions of the Air Quality Control Act, may be appointed as a member of the initial regional board if the local board member has served no more than one term on the local board. However, no current local board member shall serve a second consecutive term on the regional board immediately following his first term on the initial regional board.
H. No person employed on a full-time basis by a political subdivision within region two or the state shall be a member of the regional board. If a member has missed three consecutive meetings of the regional board without valid reason or has been absent from more than fifty percent of the meetings and hearings during any twelve consecutive meetings and hearings of the regional board, that member shall be removed from office by the political entity that appointed the member, or by the governor, if the governor appointed the member.
I. Vacant positions on the regional board shall be filled by individuals appointed by the political entity or governor that appointed the outgoing member. At least two months before a regional board member's term expires, the regional agency shall solicit from the appointing political entity or governor a recommended list of qualified individuals to fill the vacancy. The list, and any additional recommendations by the regional agency, shall be submitted to the appointing political entity for consideration. If a vacancy occurs for reasons other than expiration of a term, the regional agency shall promptly initiate the procedures used to fill a vacancy when a term has expired.
J. Five members present shall constitute a quorum of the regional board. A quorum shall be present for all matters decided by a vote of the regional board. Any action, order or decision of the regional board requires a simple majority vote of the members present, except for adoption, amendment or repeal of a regional board regulation or state implementation plan, in which case the concurrence of five members shall be required.
K. The regional board shall elect from its membership a chairperson and vice chairperson who shall serve for two-year terms. No regional board chairperson or vice chairperson shall serve in the same position for more than two consecutive terms in office. The regional board may adopt rules to govern its proceedings. The regional board shall comply with the requirements of the Open Meetings Act.
L. The director shall be the custodian of all files and records of the regional board.
M. Any member of the regional board who has a conflict of interest regarding a matter before the regional board shall disqualify himself from the discussion and shall abstain from the vote on such matter. As used in this subsection, a "conflict of interest" means any interest that may yield, directly or indirectly, any monetary or other material benefit to the regional board member or the member's spouse or minor child.
N. The regional board may adopt rules concerning nonvoting members who may attend regional board meetings and express the interests and concerns of planning commissions and Indian nation, tribe or pueblo governments located within region two. If an Indian nation, tribe or pueblo government representative attends or participates in a regional board meeting or hearing, the sovereign status of the Indian nation, tribe or pueblo government will not be affected."
Section 4. Section 74-2-4 NMSA 1978 (being Laws 1967, Chapter 277, Section 4, as amended) is amended to read:
"74-2-4. [LOCAL] REGIONAL AUTHORITY.--
[A. A county or municipality meeting the
qualifications set forth in Paragraph (1) or (2) of Subsection
J of Section 74-2-2 NMSA 1978 may assume jurisdiction as a
local authority by adopting an ordinance providing for the
local administration and enforcement of the Air Quality
Control Act. The ordinance shall:
(1) create a local board to perform, within
the boundaries of the local authority, those functions
delegated to the environmental improvement board under the Air
Quality Control Act, except any functions reserved exclusively
for the environmental improvement board;
(2) create a local agency to administer and
enforce the provisions of the Air Quality Control Act within
the boundaries of the local authority that shall, within the
boundaries of the local authority, perform all of the duties
required of the department and exert all of the powers granted
to the department, except for those duties and powers reserved
exclusively for the department; and
(3) provide for the appointment of a director
who shall perform for the local authority the same duties as
required of the secretary under the Air Quality Control Act,
except the duties and powers reserved exclusively for the
secretary.
B. At least a majority of the members of a local
board shall be individuals who represent the public interest
and do not derive any significant portion of their income from
persons subject to or who appear before the local board on
issues related to the federal act or the Air Quality Control
Act.
C. Prior to adopting any ordinance regulating air
pollution, public hearings and consultations shall be held as
directed by the local authority adopting the ordinance. The
provisions of any ordinance shall be consistent with the
substantive provisions of the Air Quality Control Act and
shall provide for standards and regulations not lower than
those required by regulations adopted by the environmental
improvement board.]
A. The regional authority is authorized to administer and enforce the Air Quality Control Act within the boundaries of region two, except for those duties and powers reserved exclusively for the department. Any political subdivision within region two may enter into a joint powers agreement with the regional agency to provide funding or additional staff to administer and enforce the Air Quality Control Act within region two.
[D.] B. Notwithstanding the provisions of
Subsection A of this section, the environmental improvement
board and the secretary shall retain jurisdiction and control
for the administration and enforcement of the Air Quality
Control Act as determined in that act with respect to any act
or failure to act [governmental or proprietary] of [any local
authority] the regional agency that causes or contributes to
air pollution, including proceeding against a [local
authority] political subdivision in region two as provided in
Section 74-2-12 NMSA 1978. "Failure to act", as used in this
section, includes failure to act against any person violating
the applicable [ordinance or] regulation adopted pursuant
thereto.
[E. Any local authority that is located within]
C. If region two includes a transportation-related
pollutant nonattainment area or maintenance area, the regional
board may provide for a vehicle emission inspection and
maintenance program for vehicles under twenty-six thousand
pounds gross vehicle weight powered by a spark-ignited
internal combustion engine, which program shall be no more
stringent than that required under the federal act or under
federal air quality standards. Any two or more [local]
regional authorities may adopt identical rules and regulations
necessary to implement the vehicle emission inspection and
maintenance program, including examining the alternatives of
public or private operation of the program.
[F. Any local authority]
D. A regional board that has implemented a
vehicle emission inspection and maintenance program may extend
the enforcement of that program by entering into joint powers
agreements with [any municipality or county within the
designated airshed or with] the department.
[G.] E. No tax shall be imposed to fund any
vehicle emission inspection and maintenance program until the
[local] regional authority has submitted the question of
imposition of a tax to the registered voters of the [local]
regional authority and those registered voters have approved
the imposition of the tax.
[H.] F. A [local] regional authority having a
vehicle emission inspection and maintenance program shall
conduct the vehicle emission inspection and maintenance
program through a decentralized privately owned and operated
system unless air quality emissions result in automatic
implementation of another type of program under the terms of a
contingency plan required and approved by the United States
environmental protection agency. The [local authority]
regional board shall set the emission inspection fee by
[ordinance] regulation.
[I.] G. A [local authority having] regional board
that has implemented a vehicle emission inspection and
maintenance program is authorized to adopt rules, regulations
and guidelines governing the establishment of private vehicle
emission inspection and maintenance stations. No private
vehicle emission inspection and maintenance station shall test
vehicles unless the station possesses a valid permit issued by
the [local] regional agency. Permit fees shall be determined
by [ordinance] regulation of the [local authority] regional
board and shall not exceed two hundred dollars ($200) per year
per station. Additionally, a [local authority] regional board
may charge a permit fee of up to thirty-five dollars ($35.00)
per year for each vehicle emissions mechanic and for each
vehicle emissions inspector. The imposition of permit fees
does not require a vote of the registered voters of the
[local] regional authority."
Section 5. 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] REGIONAL BOARD.--
A. The environmental improvement board or the
[local] regional board shall prevent or abate air pollution.
B. The environmental improvement board or the
[local] regional board shall:
(1) adopt, promulgate, publish, amend and
repeal regulations consistent with the Air Quality Control Act
to attain and maintain national ambient air quality standards
and prevent or abate air pollution, including regulations
prescribing air standards, within the geographic area of the
environmental improvement board's jurisdiction or the [local]
regional board's jurisdiction, or any part thereof; 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] regional board's jurisdiction or
any part thereof.
C. Regulations adopted by the environmental
improvement board or the [local] regional board may:
(1) include regulations 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 such regulations:
(a) shall be no more stringent than but 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; and
(b) shall be applicable only to sources subject to such regulation pursuant to the federal act;
(2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that, except as provided in Paragraph (3) of this subsection:
(a) shall be no more stringent than but at least as stringent as required by federal standards of performance; and
(b) shall be applicable only to sources subject to such federal standards of performance;
(3) include regulations governing emissions from solid waste incinerators that shall be at least as stringent as, and may be more stringent than, any applicable federal emission limitations;
(4) require notice to the department or the
[local] regional 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] regional board's jurisdiction; and
(5) 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] regional
board;
(c) establish and maintain records of the nature and amount of emissions;
(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.
D. Any regulation adopted [under] pursuant to this
section shall be consistent with federal law, if any, relating
to control of motor vehicle emission.
E. In making its regulations, the environmental
improvement board or the [local] regional board shall give
weight it deems appropriate to all facts and circumstances,
including but not limited to:
(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."
Section 6. 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] REGIONAL AGENCY.--The department and the [local]
regional 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]
regional 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
of the environmental improvement board or the [local] regional
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] regional 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] regional 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] regional
authority's responsibility."
Section 7. 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, region two, 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] regional
authority and the department, between one [local] regional
authority and another or among any combination of [local]
regional 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 tribes, where appropriate."
Section 8. 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--NOTICE AND HEARINGS.--
A. Any person may recommend or propose regulations
to the environmental improvement board or the [local] regional
board for adoption. Within sixty days of submission of a
proposed regulation, the environmental improvement board or
the [local] regional board shall determine whether to hold a
hearing [within sixty days of submission of a proposed
regulation].
B. No regulations or emission control requirement
shall be adopted until after a public hearing by the
environmental improvement board or the [local] regional board.
As used in this section, "regulation" 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 may be held in Santa Fe
or within any area of the state substantially affected by the
regulation.
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 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]
regional board for advance notice of its hearings.
D. At the hearing, the environmental improvement
board or the [local] regional 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] regional board.
E. The environmental improvement board or the
[local] regional board may designate a hearing officer to take
evidence in the hearing.
F. No [regulations] regulation or emission control
requirement adopted by the environmental improvement board or
the [local] regional board shall become effective until thirty
days after its filing under the State Rules Act."
Section 9. 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] REGIONAL TECHNICAL APPEALS
BOARD AND THE REGIONAL BOARD--PERMIT FEES.--
A. By regulation, the environmental improvement
board or the [local] regional board shall require:
(1) [any] 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] regional agency prior to such
construction or modification; and
(2) [any] 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] regional agency.
B. Regulations adopted by the environmental
improvement board or the [local] regional board shall include
at least the following provisions:
(1) requirements for the submission of
relevant information, including [but not limited to]
information the department or the [local] regional 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] regional
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]
regional 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] regional
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] regional 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] regional 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]
regional agency to contract with qualified outside firms to
assist the department or [local] regional agency in its
accelerated review of the construction permit application;
provided that the department or [local] regional 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] regional agency to account for the
expenditure of the accelerated permit processing fees;
(9) [allows 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 board]
regional 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]
regional agency receives notice of objection from the United
States environmental protection agency before the operating
permit is issued, the department or the [local] regional
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] regional agency
may deny any application for:
(1) a construction permit if it appears that the construction or modification will not meet applicable requirements of the Air Quality Control Act, the federal act or any regulation adopted pursuant to either; or
(2) an operating permit if:
(a) the source for which the permit is
sought will emit a hazardous air pollutant or [any] an air
contaminant in excess of a federal standard of performance or
a regulation of the environmental improvement board or the
[local] regional board;
(b) it appears that the source for
which the permit is sought will cause or contribute to air
contaminant levels in excess of [any] a national or state
standard or, within the boundaries of a [local] regional
authority, applicable [local] regional ambient air quality
standards; or
(c) any other provision of the Air Quality Control Act or the federal act will be violated.
D. The department or the [local] regional agency
may specify conditions to any permit granted under this
section, including:
(1) for a construction permit, a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the requirements of the Air Quality Control Act, the federal act and regulations promulgated pursuant to either; and
(2) for an operating permit:
(a) imposition of individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the operating permit application, whichever is more stringent;
(b) compliance with applicable federal standards of performance;
(c) imposition of reasonable restrictions and limitations not relating to emission limits or emission rates; or
(d) any combination of the conditions listed in this paragraph.
E. This section does not authorize the department
or the [local] regional 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] regional board. Any conditions placed upon a permit
by the department or the [local] regional agency shall be
enforceable to the same extent as a regulation of its board.
G. [Any] A person who participated in a permitting
action before the department or the [local] regional agency
shall be notified by the department or the [local] regional
agency of the action taken and the reasons for the action.
Notification of the applicant shall be by certified mail.
H. [Any] A person who participated in a permitting
action before the department [or the local agency] and who is
adversely affected by such permitting action may file a
petition for hearing 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. A person who participated in a permitting action before the regional agency and who is adversely affected by the permitting action may file a petition for hearing before the regional technical appeals board for the regional board. The petition shall be made in writing to the regional board within thirty days from the date notice is given of the regional agency's action. Unless a timely petition for hearing is made, the decision of the regional agency is final.
J. A three-person "regional technical appeals board" is created and shall hold administrative hearings on the merits of appeals from permitting actions decided by the regional agency. Before the regional technical appeals board is appointed to hear a specific appeal, the regional board shall select five individuals who reside within the board's jurisdiction, are qualified by education, training and experience to review technical information involved in permitting actions and agree to serve as members of the regional technical appeals board. If the regional board receives a timely petition for an appeal hearing regarding a permitting action within its jurisdiction, the chairperson or vice chairperson of the regional board shall appoint three of the previously selected five individuals to serve as the regional technical appeals board for the appeal. If three qualified individuals without a conflict of interest are not available to hear a specific appeal, the chairperson or vice chairperson of the regional board shall select an additional qualified individual or individuals to serve on the three-person regional technical appeals board. As used in this subsection, "conflict of interest" means any interest that may yield, directly or indirectly, any monetary or other material benefit to the board member or the member's spouse or minor child.
K. The services of a regional technical appeals board member shall include reviewing the administrative appeal pleadings; conducting an appeal hearing on the merits; reviewing exhibits admitted at the hearing; preparing written findings of fact and a written recommended decision; submitting the findings and recommended decision to the regional board; and attending and answering questions asked by the regional board at the final administrative hearing on the record. Following submission of a detailed request for payment by each regional technical appeals board member, members shall be paid a maximum of five hundred dollars ($500) each for their services, which shall be paid by the regional agency whose decision is being appealed.
[I.] L. If a timely petition for hearing is made
to the environmental improvement board [or the local board],
it 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.
M. If a timely petition for an administrative appeal hearing is made to the regional board, within forty-five days after the regional board receives the petition, the regional technical appeals board shall hold an administrative hearing on the merits. The regional 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 regional technical appeals board hearing. If the subject of the petition is a permitting action deemed by the regional board to substantially affect the public interest, the regional board shall ensure that the public receives notice of the date, time and place of the regional technical appeals board hearing on the merits and the final administrative hearing on the record. At the regional technical appeals board 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 on the merits. Any person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing. Within ninety days after the regional board receives the petition, the regional board shall hold an administrative hearing on the record, at which time the parties may make closing arguments.
[J.] N. The environmental improvement board [or
the local], the regional technical appeals board and the
regional board may designate a hearing officer to take
evidence in the hearing. All hearings shall be recorded.
[K.] O. 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].
P. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the regional technical appeals board hearing on the merits, findings and recommended decision of the regional technical appeals board, and closing arguments made at the hearing on the record before the regional board, the regional board shall sustain, modify or reverse the action of the regional agency. The decision of the regional board shall be the final administrative appeal decision.
Q. At the final administrative appeal hearing on the record held before the regional board, the parties may make closing arguments. In making its decision, the regional board shall consider the pleadings, the record from the regional technical appeals board hearing on the merits, the regional technical appeals board findings of fact and recommended decision and the closing arguments made before the regional board.
[L.] R. 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] regional agency,
the [local] regional board or the court of appeals that a new
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.] S. Subject to the provisions of Section
74-2-4 NMSA 1978, if the [local] regional board has adopted a
permit regulation pursuant to this section, persons
constructing or modifying any new source within the boundaries
of the [local] regional authority shall obtain a permit from
the [local] regional agency and not from the department.
[N.] T. 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] regional agency
pursuant to a permit regulation adopted by the [local]
regional board pursuant to this section."
Section 10. 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] regional board may grant an individual variance from
the limitations prescribed under the Air Quality Control Act,
any regulation of the environmental improvement board or the
[local] regional board or any permit condition imposed by the
department or the [local] regional agency whenever it is
found, upon presentation of adequate proof:
(1) that compliance with any part of that
act, any regulation of the environmental improvement board or
the [local] regional 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 variance shall be granted pursuant to this
section until the environmental improvement board or the
[local] regional 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 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 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] regional 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 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] regional 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 11. 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] regional board, 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, the date of the
action shall be the date of the filing of the regulation by
the environmental improvement board or the [local] regional
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] regional board, the department or the [local]
regional agency, whichever took the action being appealed; or
(2) by the court of appeals if the
environmental improvement board, the [local] regional board,
the department or the [local] regional agency denies a stay or
fails to act upon an application for a stay within sixty days
after receipt of the application."
Section 12. 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, the
environmental improvement board, the [local] regional board or
the [local] regional agency shall be available to the public,
except that upon a satisfactory showing to the secretary, the
director, the environmental improvement board, the [local]
regional board or the [local] regional agency, as applicable,
by any person that records, reports or information, or
particular parts thereof, except emission data, to which the
department, the [local] regional agency, the environmental
improvement board or the [local] regional 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, the environmental improvement board
or the [local] regional 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]
regional agency, the environmental improvement board or the
[local] regional 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] regional board shall adopt regulations to implement
this section, including regulations specifying those business
records entitled to treatment as confidential records."
Section 13. 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.--The Air Quality Control Act does not:
A. authorize the environmental improvement board
or the [local] regional board to make any regulation 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] regional 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 14. Section 74-2-12 NMSA 1978 (being Laws 1992, Chapter 20, Section 14) is amended to read:
"74-2-12. ENFORCEMENT--COMPLIANCE ORDERS--FIELD CITATIONS.--
A. Whenever, on the basis of any information, the secretary or the director determines that any person has violated or is violating any requirement or prohibition of the Air Quality Control Act, any regulation promulgated pursuant to that act or any condition of a permit issued under that act, the secretary or the director may:
(1) issue a compliance order 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 any 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. Any order issued pursuant to Subsection A of this section may include a suspension or revocation of any permit, or portion thereof, issued by the secretary or the director. Any penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) per day of noncompliance for each violation.
C. Any 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 his recommendation based thereon to the secretary or the director, who shall make the final decision.
D. The environmental improvement board or the
[local] regional board may implement a field citation program
through regulations 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] regional agency as designated by the secretary or the
director.
E. Any person to whom a field citation is issued
pursuant to Subsection D of this section may, within a
reasonable time as prescribed by regulation by the
environmental improvement board or the [local] regional 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, 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] regional 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 any 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 any 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. Penalties collected pursuant to an administrative order or a field citation shall be deposited in the:
(1) [municipal or county] regional agency
general fund, as applicable, if the administrative order or
field citation was directed to a source located within a
[local] regional authority; or
(2) state general fund if the administrative order or field citation was directed to any other source."
Section 15. Section 74-2-12.1 NMSA 1978 (being Laws 1992, Chapter 20, Section 15) is amended to read:
"74-2-12.1. CIVIL PENALTY--REPRESENTATION OF DEPARTMENT
OR [LOCAL] REGIONAL AUTHORITY.--
A. Any person who violates any provision of the Air Quality Control Act or any regulation, 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. In any action to enforce the provisions of the Air Quality Control Act or any ordinance, regulation, permit condition or emergency order, adopted, imposed or issued pursuant to that act:
(1) the department shall be represented by the attorney general; and
(2) [a local] within region two, the regional
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] regional agency."
Section 16. 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 of
the environmental improvement board, the [local] regional
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 of
the environmental improvement board or the [local] regional
board or any permit condition;
(2) inspect any monitoring equipment and
method required by regulations of the environmental
improvement board, the [local] regional board or by any permit
condition; and
(3) sample any emissions that are required to
be sampled pursuant to regulation of the environmental
improvement board, the [local] regional board or any permit
condition."
Section 17. 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 of the environmental improvement board or
regional 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 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 relating to commercial or industrial incineration;
(2) violation of any regulation adopting any federal standard of performance;
(3) violation of any regulation relating to control of hazardous air pollutants; or
(4) violation of any regulation relating to control of toxic air pollutants.
[D.] C. At any source required to have an
operating permit pursuant to Section 502 of the federal act,
any person who knowingly commits any violation of any
applicable standard, regulation 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 of the
environmental improvement board or the [local] regional 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.] D. Any person who knowingly commits any
violation of a regulation of the environmental improvement
board or the [local] regional board not listed in Subsection
A, B, C or [D] F 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.] E. Any 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 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 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.] F. Any 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
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 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 18. Section 74-2-16 NMSA 1978 (being Laws 1992, Chapter 20, Section 19) is amended to read:
"74-2-16. [MUNICIPAL OR COUNTY] REGION TWO AIR QUALITY
PERMIT FUND.--
A. [A local authority shall create within the
municipal or county treasury a fund to be known as the
________________________ (name of municipality or county)]
The "region two air quality permit fund" is created in the
municipal treasury of the regional agency. All fees collected
by [a municipality or county] the regional agency pursuant to
Section 74-2-7 NMSA 1978 shall be deposited in the fund
[created pursuant to this section].
B. Money in the fund [created pursuant to this
section] shall be used by the [municipality or county only for
the purpose of paying] regional agency only to pay the
reasonable costs of:
(1) appealing, reviewing and acting upon any application for a permit;
(2) [if the owner or operator receives a
permit] implementing and enforcing the terms and conditions of
[such] a permit issued to an owner or operator, not including
any court costs or other costs associated with any enforcement
action;
(3) emissions and ambient monitoring;
(4) preparing generally applicable regulations or guidance;
(5) modeling, analysis and demonstrations; and
(6) preparing inventories and tracking emissions."
Section 19. LIBERAL INTERPRETATION.--Sections 1 through 20 of this act shall be liberally construed to carry out their purpose.
Section 20. A new section of the Air Quality Control Act, Section 74-2-18 NMSA 1978, is enacted to read:
"74-2-18. [NEW MATERIAL] SAVING CLAUSE--CONTINUING REGULATIONS.--
A. The creation of a regional authority, regional board or regional agency shall not affect an action pending for violation of an environmental improvement board regulation, an ordinance of a local authority, a regulation or standard adopted by a local board or a permit that is valid at the time the Air Quality Control Act is amended.
B. Until a permit is modified and approved by the regional agency, an amendment to the Air Quality Control Act that authorizes a regional authority, regional board and regional agency shall not affect the validity of any permit issued by the department or a local agency, nor affect the validity of any regulation or standard that has been adopted by the environmental improvement board or the local board.
C. The provisions of the Air Quality Control Act regarding a local authority, local agency or local board, and the local board regulations, standards and permits, shall remain in effect until the regional board is appointed and adopts regulations and standards effective throughout region two."
Section 21. TEMPORARY PROVISION--TRANSFERS.--All money in the local authority's air quality permit funds created pursuant to Section 74-2-16 NMSA 1978 is transferred to the region two air quality permit fund upon creation of that fund.
Section 22. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Section 23. EFFECTIVE DATE.--The effective date of the provisions of Sections 3, 5, 8, 19, 20 and 22 of this act is March 1, 2002. The effective date of the provisions of Sections 1, 2, 4, 6, 7 and 9 through 18 and 21 of this act is September 1, 2002; provided that the regional board may declare the effective date to be twelve months after the federal environmental protection agency confirms in writing that a federal Clean Air Act criteria pollutant standard has been violated within region two.