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SPONSOR: |
HJC |
DATE TYPED: |
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HB |
655/HJCS |
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SHORT TITLE: |
Air Quality Control Act Appeals |
SB |
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ANALYST: |
Chavez |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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See Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Office
of the Attorney General
Department
of Environment (NMED)
SUMMARY
Synopsis of House Bill
The House Judiciary
Committee Substitute for House Bill 655 amends various sections of the Air
Quality Control Act to provide for appeals to the Environmental Improvement
Board based on the record of a public hearing.
The House Judiciary Committee Substitute for House Bill 655 provides for
the following:
§ Requires the board to consider and weigh only the evidence contained in the record in addition to the recommended decision if any and not be bound by the factual findings or legal conclusions of the department;
§ Requires the board to keep a record of the review;
§
Requires the local board to hold a
hearing on the petition;
§
The local board may designate a hearing
officer and recommend a decision to the board;
§
All interested persons are required to be
given a reasonable opportunity to submit evidence, data, views and arguments orally
or in writing, and to examine witnesses testifying at the hearing;
§
Any person submitting evidence, data,
views or arguments is subject to examination at the hearing;
§
Requires the environmental improvement
board or the local board to notify the petitioner and all other participants in
the review of the action taken and the reasons for the action;
§
Provides for appeal of an administrative
action to the district court instead of the court of appeals for actions other
than the adoption of a regulation;
§
States that a person adversely affected
by a regulation may appeal the regulation with the court of appeals.
Significant
Issues
Under current state regulations, most permitting
actions of NMED under the Air Quality Control Act may be subject to a full
evidentiary hearing before NMED. NMED final permitting actions can be appealed
to the Environmental Improvement Board. Presently, even if there was a full
evidentiary hearing on a permit before NMED, an appeal of the NMED permitting
action takes the form of a de novo
evidentiary hearing before the EIB. This
can result in two full evidentiary hearings on the same permit. The committee substitute amends Section
74-2-7 of the AQCA to provide that an appeal of an NMED permitting action will
be conducted as a record review by the EIB, instead of conducted as a de novo evidentiary hearing. The EIB will perform a review of the record
created before NMED instead of conducting an entirely new hearing on the same
permit.
FISCAL IMPLICATIONS
The committee substitute for House Bill 655 does
not contain an appropriation. Enactment of HB 655 could have a positive
administrative and fiscal impact on NMED, who currently is required to provide
technical and legal staff for duplicative hearings.
ADMINISTRATIVE IMPLICATIONS
The committee substitute for HB 655 proposes a streamlined hearing
process that would free additional staff resources to focus on core NMED
statutory responsibilities, i.e.,
permit issuance and oversight.
TECHNICAL ISSUES
The Office of the Attorney General reports the
following technical issue:
HB 655 provides for
appeal of an administrative action to the district court for actions other than
the adoption of a regulation. However,
HB 655’s Section 1, subsection H, pages 8-9, states that unless a person adversely
affected by a permitting action files a petition for review by the
environmental improvement board or a local board, the board’s action is not
subject to judicial review. Although HB
655’s Section 2, subsection A, page 12 states that an appeal of an
administrative action may be taken to the district court pursuant to NMSA 1978,
Section 39-3-1.1, consider clarifying that Section 39-3-1.1 provides for
judicial review of final agency decisions.
FC/prr