AN ACT
RELATING TO THE ENVIRONMENT; AMENDING
THE AIR QUALITY CONTROL ACT TO PROVIDE STANDARDS FOR COTTON GINS AND OTHER
SEASONAL AGRICULTURAL OPERATIONS.
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 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."
HB 192
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