0001| SENATE BILL 1238
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| MICHAEL S. SANCHEZ
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO THE ENVIRONMENT; AMENDING CERTAIN SECTIONS OF THE
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0012| NMSA 1978 TO MODIFY THE AIR QUALITY CONTROL ACT; DECLARING AN
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0013| EMERGENCY.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 74-2-2 NMSA 1978 (being Laws 1967,
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0017| Chapter 277, Section 2, as amended) is amended to read:
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0018| "74-2-2. DEFINITIONS.--As used in the Air Quality Control
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0019| Act:
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0020| A. "air contaminant" means any substance, including
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0021| but not limited to any particulate matter; fly ash; dust;
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0022| fumes; gas; mist; smoke; vapor; microorganisms; radioactive
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0023| material, including source material, special nuclear material
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0024| and byproduct material, as defined by the federal Atomic Energy
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0025| Act of 1954, as amended; or any combination [thereof] or any
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0001| decay or reaction product thereof that is emitted or otherwise
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0002| enters the ambient air;
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0003| B. "air pollution" means the emission, except
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0004| emission that occurs in nature, into the [outdoor atmosphere]
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0005| ambient air of one or more air contaminants in quantities and
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0006| of a duration that may with reasonable probability injure human
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0007| health or animal or plant life or as may unreasonably interfere
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0008| with the public welfare, visibility or the reasonable use of
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0009| property;
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0010| C. "department" means the department of
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0011| environment;
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0012| D. "director" means the administrative head of a
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0013| local agency;
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0014| E. "emission limitation" [and] or "emission
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0015| standard" [mean] means a requirement established by the
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0016| environmental improvement board or the local board, the
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0017| department, the local authority or the local agency or pursuant
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0018| to the federal act that limits the quantity, rate or
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0019| concentration, or combination thereof, of emissions of air
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0020| contaminants on a continuous basis, including any requirements
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0021| relating to the operation or maintenance of a source to assure
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0022| continuous reduction and any design, equipment, work practice
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0023| or operational standard promulgated pursuant to the Air Quality
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0024| Control Act or the federal act;
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0025| F. "federal act" means the federal Clean Air Act,
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0001| Sections 42 U.S.C. Sections 7401, et seq., its subsequent
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0002| amendments and successor provisions;
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0003| G. "federal standard of performance" means any
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0004| standard of performance, emission limitation or emission
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0005| standard adopted pursuant to [42 USC Section 7411 or 7412]
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0006| Section 111 or 112 of the federal act;
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0007| H. "hazardous air pollutant" means an air
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0008| contaminant that has been [classified] listed as a
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0009| hazardous air pollutant pursuant to Section 112(b) of the
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0010| federal act;
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0011| I. "local agency" means the administrative agency
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0012| established by a local authority pursuant to Paragraph (2) of
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0013| Subsection A of Section 74-2-4 NMSA 1978;
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0014| J. "local authority" means any of the following
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0015| political subdivisions of the state that have, by following the
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0016| procedure set forth in Subsection A of Section 74-2-4 NMSA
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0017| 1978, assumed jurisdiction for local administration and
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0018| enforcement of the Air Quality Control Act:
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0019| (1) a county that was a class A county as of
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0020| January 1, 1980; or
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0021| (2) a municipality with a population greater
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0022| than one hundred thousand located within a county that was a
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0023| class A county as of January 1, 1980;
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0024| K. "local board" means a municipal, county or joint
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0025| air quality control board created by any local authority;
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0001| L. "mandatory class I area" means any of the
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0002| following areas in this state that were in existence on August
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0003| 7, 1977:
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0004| (1) national wilderness areas that exceed five
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0005| thousand acres in size; and
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0006| (2) national parks that exceed six thousand
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0007| acres in size;
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0008| M. "modification" means any physical change in, or
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0009| change in the method of operation of, a source that [results
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in an increase in the potential emission rate] increases or
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0011| potentially increases the amount of any regulated air
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0012| contaminant emitted by the source or that results in the
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0013| emission of any regulated air contaminant not previously
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0014| emitted, but does not include:
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0015| (1) a change in ownership of the source;
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0016| (2) routine maintenance, repair or
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0017| replacement;
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0018| (3) for changes not subject to regulations to
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0019| prevent significant deterioration of air quality or to achieve
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0020| national ambient air quality standards in nonattainment areas:
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0021| [(3)] (a) installation of air
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0022| pollution control equipment, and all related process equipment
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0023| and materials necessary for its operation, undertaken for the
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0024| purpose of complying with regulations adopted by the
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0025| environmental improvement board or the local board or pursuant
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0001| to the federal act, or with permits issued by the department
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0002| or the local authority under the Air Quality Control Act; or
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0003| (b) a change that increases the amount
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0004| of any regulated air contaminant, the ambient concentration of
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0005| which is regulated pursuant to the Air Quality Control Act or
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0006| the federal act, emitted by the source by less than a de
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0007| minimis amount established by regulation of the environmental
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0008| improvement board or local board; or
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0009| (4) unless previously limited by enforceable
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0010| permit conditions:
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0011| (a) an increase in the production rate,
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0012| if such increase does not exceed the operating design capacity
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0013| of the source;
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0014| (b) an increase in the hours of
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0015| operation; or
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0016| (c) use of an alternative fuel or raw
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0017| material if, prior to January 6, 1975, the source was capable
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0018| of accommodating such fuel or raw material or if use of an
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0019| alternate fuel or raw material is caused by any natural gas
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0020| curtailment or emergency allocation or any other lack of supply
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0021| of natural gas;
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0022| N. "nonattainment area" means for any air
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0023| contaminant an area that is designated "nonattainment" with
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0024| respect to that contaminant within the meaning of Section
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0025| 107(d) of the federal act;
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0001| O. "person" includes an individual, partnership,
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0002| corporation, association, the state or political subdivision of
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0003| the state and any agency, department or instrumentality of the
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0004| United States and any of their officers, agents or employees;
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0005| [P. "potential emission rate" means the emission
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rate of a source at its maximum capacity in the absence of air
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pollution control equipment that is not vital to production of
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the normal product of the source or to its normal operation;
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Q.] P. "regulated air contaminant" means any air
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0010| contaminant, the emission or ambient concentration of which is
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0011| regulated pursuant to the Air Quality Control Act or the
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0012| federal act;
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0013| [R.] Q. "secretary" means the secretary of
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0014| environment;
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0015| [S.] R. "significant deterioration" means any
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0016| increase in the ambient concentrations of any air contaminant
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0017| above the levels allowed by the federal act or federal
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0018| regulations for that air contaminant in the area within which
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0019| the increase occurs;
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0020| [T.] S. "source" means any structure, building,
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0021| equipment, facility, installation or operation that emits or
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0022| may emit any air contaminant;
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0023| [U.] T. "standard of performance" means a
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0024| requirement of continuous emission reduction, including any
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0025| requirement relating to operation or maintenance of a source to
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0001| assure continuous emission reduction;
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0002| [V.] U. "state implementation plan" means any
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0003| plan submitted by New Mexico to the federal environmental
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0004| protection agency pursuant to [42 U.S.C. Section 7410]
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0005| Section 110 of the federal act; and
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0006| [W.] V. "toxic air pollutant" means any air
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0007| contaminant, except a hazardous air pollutant, classified by
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0008| the environmental improvement board or the local board as a
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0009| toxic air pollutant."
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0010| Section 2. Section 74-2-7 NMSA 1978 (being Laws 1972,
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0011| Chapter 51, Section 4, as amended) is amended to read:
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0012| "74-2-7. PERMITS--PERMIT APPEALS TO THE ENVIRONMENTAL
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0013| IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--
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0014| A. By regulation, the environmental improvement
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0015| board or the local board shall require:
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0016| (1) any person intending to construct or
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0017| modify any source, except as otherwise specifically provided by
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0018| regulation, to obtain a construction permit from the department
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0019| or the local agency prior to such construction or modification;
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0020| and
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0021| (2) any person intending to operate any source
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0022| for which an operating permit is required by [the 1990
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amendments to] Section 502 of the federal act [except as
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otherwise specifically provided by regulation] to obtain an
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0025| operating permit from the department or the local agency.
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0001| B. Regulations adopted by the environmental
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0002| improvement board or the local board shall include at least the
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0003| following provisions:
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0004| (1) requirements for the form and content of
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0005| permit applications, including the submission of relevant
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0006| information [including but not limited to information] the
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0007| department or the local agency deems necessary to [ensure]
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0008| determine that regulations and standards under the Air
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0009| Quality Control Act or the federal act will not be violated;
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0010| (2) specification of the deadlines for
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0011| processing permit applications; provided, the deadline for a
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0012| final decision by the department or the local agency on a
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0013| construction permit application may not exceed:
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0014| (a) one hundred eighty days after the
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0015| application is determined to be complete, if the application is
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0016| not [affected by requirements for prevention of] subject to
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0017| regulations to prevent significant deterioration of air
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0018| quality; or
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0019| (b) two hundred forty days after the
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0020| application is determined to be complete, if the application is
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0021| [affected by requirements for prevention of] subject to
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0022| regulations to prevent significant deterioration of air
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0023| quality;
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0024| (3) specification of the public notice,
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0025| comment period and public hearing, if any, required prior to
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0001| the issuance of a permit; provided the permit regulations
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0002| adopted:
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0003| (a) by the environmental improvement
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0004| board shall include provisions governing notice to nearby
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0005| states; and
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0006| (b) by any local board shall include
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0007| provisions requiring that notice be given to the department of
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0008| all permit applications [by any source that emits, or has a
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potential emission rate of, one hundred tons per year or more
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of any regulated air contaminant] subject to regulations to
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0011| prevent significant deterioration of air quality or to achieve
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0012| national ambient air quality standards in nonattainment areas,
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0013| including any source of fugitive emissions of each regulated
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0014| air contaminant, at least sixty days prior to the date on which
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0015| construction or major modification is to commence;
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0016| (4) a schedule of construction permit fees
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0017| sufficient to cover:
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0018| (a) the reasonable costs of reviewing
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0019| and acting upon any application for such permit; and
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0020| (b) the reasonable costs of implementing
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0021| and enforcing the terms and conditions of the permit, excluding
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0022| any court costs or other costs associated with an enforcement
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0023| action;
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0024| (5) a schedule of emission fees consistent
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0025| with the provisions of Section 502(b)(3) of [the 1990
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amendments to] the federal act;
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0002| (6) specification of the maximum length of
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0003| time for which a permit shall be valid; provided that for an
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0004| operating permit, such period may not exceed five years; and
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0005| (7) for an operating permit only:
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0006| (a) provisions consistent with Sections
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0007| 502(b) and 505(b) of the federal act providing: 1) notice to
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0008| and review and comment by the United States environmental
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0009| protection agency; and 2) that if the department or local
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0010| agency receives notice of objection from the United States
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0011| environmental protection agency before the operating permit is
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0012| issued, the department or the local agency shall not issue the
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0013| permit unless it is revised and issued under Section 505(c) of
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0014| the federal act;
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0015| (b) provisions governing renewal of the
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0016| operating permit; and
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0017| (c) specification of the conditions
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0018| under which the operating permit may be terminated, modified or
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0019| revoked and reissued prior to the expiration of the term of the
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0020| operating permit.
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0021| C. The department or the local agency may deny any
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0022| application for:
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0023| (1) a construction permit if it appears that
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0024| the source, after construction or modification:
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0025| (a) will not meet applicable
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0001| [requirements of] regulations adopted pursuant to the Air
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0002| Quality Control Act; [the federal act or any regulation
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adopted pursuant to either; or
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(2) an operating permit if:
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(a) the source for which the permit is
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sought]
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0007| (b) will emit [a hazardous air
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pollutant or] any air contaminant in excess of a federal
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0009| standard of performance or a regulation of the environmental
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0010| improvement board or the local board;
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0011| [(b) it appears that the source for
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which the permit is sought] (c) will cause or contribute to
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0013| air contaminant levels in excess of any national or state
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0014| ambient air quality standard or, within the boundaries of a
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0015| local authority, applicable local ambient air quality
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0016| standards; or
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0017| [(c)] (d) will violate any other
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0018| provision of the Air Quality Control Act or the federal act
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0019| [will be violated]; and
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0020| (2) an operating permit if the source will not
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0021| meet each applicable standard, regulation or requirement under
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0022| the Air Quality Control Act or the federal act.
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0023| D. The department or the local agency may specify
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0024| reasonable terms and conditions to any permit granted under
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0025| this section [including] as follows:
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0001| (1) for a construction permit such terms and
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0002| conditions may include:
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0003| (a) a requirement that such source
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0004| install and operate control technology, determined on a case-
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0005| by-case basis, sufficient to meet the requirements of the Air
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0006| Quality Control Act, the federal act and regulations
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0007| promulgated pursuant to either; [and
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(2) for an operating permit:
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(a)] (b) imposition of individual
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0010| emission limits, determined on a case-by-case basis, but only
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0011| as restrictive as necessary to [meet the] ensure compliance
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0012| with applicable standards, regulations or requirements [of]
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0013| under the Air Quality Control Act and the federal act [or
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the emission rate specified in the operating permit
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application, whichever is more stringent];
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0016| (c) at the request of the applicant,
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0017| imposition of practicably enforceable limitations, including
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0018| facility-wide emission limitations, that are no less stringent
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0019| than necessary to ensure compliance with applicable standards,
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0020| regulations or requirements under the Air Quality Control Act
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0021| and the federal act, or are established to limit the amount of
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0022| a regulated air contaminant that a source has the potential to
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0023| emit;
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0024| [(b)] (d) compliance with applicable
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0025| federal standards of performance;
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0001| [(c)] (e) imposition of reasonable
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0002| restrictions and limitations not relating to emission limits or
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0003| emission rates; or
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0004| [(d)] (f) any combination of the
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0005| terms and conditions listed above.
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0006| For a modification, the terms and conditions shall apply
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0007| only to the emission unit or units being modified; and
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0008| (2) for an operating permit, such terms and
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0009| conditions shall be sufficient to ensure compliance with each
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0010| applicable standard, regulation or requirement under the Air
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0011| Quality Control Act or the federal act, including any pertinent
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0012| term or condition in a construction permit issued pursuant to
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0013| this section.
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0014| E. This section does not authorize the department
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0015| or the local agency to require the use of machinery, devices or
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0016| equipment from a particular manufacturer if the federal
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0017| standards of performance, state regulations and permit
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0018| conditions may be met by machinery, devices or equipment
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0019| otherwise available.
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0020| F. The issuance of a permit does not relieve any
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0021| person from the responsibility of complying with the provisions
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0022| of the Air Quality Control Act and any applicable regulations
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0023| of the environmental improvement board or the local board. Any
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0024| conditions placed upon a permit by the department or the local
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0025| agency shall be enforceable to the same extent as a regulation
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0001| of its board.
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0002| G. Any person who participated in a permitting
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0003| action before the department or the local agency shall be
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0004| notified by the department or the local agency of the action
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0005| taken and the reasons for the action. Notification of the
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0006| applicant shall be by certified mail.
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0007| H. Any person who participated in a permitting
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0008| action before the department or the local agency and who is
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0009| adversely affected by such permitting action may file a
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0010| petition for hearing before the environmental improvement board
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0011| or the local board. The petition shall be made in writing to
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0012| the environmental improvement board or the local board within
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0013| thirty days from the date notice is given of the department's
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0014| or the local agency's action. The petition shall specify the
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0015| portions of the permitting action to which the petitioner
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0016| objects, generally state the objections, certify that a copy of
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0017| the petition has been served in accordance with this subsection
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0018| and have attached a copy of the permitting action for which a
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0019| hearing is sought. If the petitioner is not the applicant or
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0020| permittee, the petitioner shall serve a copy of the petition on
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0021| the applicant or permittee. Unless a timely [request]
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0022| petition for hearing is made, the decision of the department
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0023| or the local agency shall be final.
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0024| I. If a timely petition for hearing is made, the
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0025| environmental improvement board or the local board shall hold a
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0001| hearing within ninety days after receipt of the petition. The
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0002| environmental improvement board or the local board shall notify
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0003| the petitioner and the applicant or permittee, if other than
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0004| the petitioner, by certified mail of the date, time and place
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0005| of the hearing. If the subject of the petition is a permitting
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0006| action deemed by the environmental improvement board or the
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0007| local board to substantially affect the public interest, the
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0008| environmental improvement board or the local board shall ensure
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0009| that the public receives notice of the date, time and place of
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0010| the hearing. The public in such circumstances shall also be
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0011| given a reasonable opportunity to submit data, views or
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0012| arguments orally or in writing and to examine witnesses
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0013| testifying at the hearing. Any person submitting data, views
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0014| or arguments orally or in writing shall be subject to
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0015| examination at the hearing.
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0016| J. The environmental improvement board or the local
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0017| board may designate a hearing officer to take evidence in the
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0018| hearing. All hearings shall be recorded.
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0019| K. The burden of proof shall be upon the
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0020| petitioner. Based upon the evidence presented at the hearing,
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0021| the environmental improvement board or the local board shall
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0022| sustain, modify or reverse the action of the department or the
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0023| local agency respectively.
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0024| L. Notwithstanding any other provision of law and
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0025| subject to the provisions of Section 74-2-4 NMSA 1978, a final
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0001| decision on a permit by the department, the environmental
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0002| improvement board, the local agency, the local board or the
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0003| court of appeals that a new source will or will not meet
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0004| applicable local, state and federal air pollution standards and
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0005| regulations shall be conclusive and is binding on every other
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0006| state agency and as an issue before any other state agency
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0007| shall be deemed resolved in accordance with that final
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0008| decision.
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0009| M. Subject to the provisions of Section 74-2-4 NMSA
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0010| 1978, if the local board has adopted a permit regulation
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0011| pursuant to this section, persons [constructing or modifying
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any new] intending to construct or modify a source or to
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0013| operate a source for which an operating permit is required by
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0014| Section 502 of the federal act within the boundaries of the
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0015| local authority shall obtain a construction permit or an
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0016| operating permit, whichever is applicable, from the local
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0017| agency and not from the department.
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0018| N. Fees collected pursuant to this section shall be
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0019| deposited in:
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0020| (1) the state air quality permit fund created
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0021| by Section 74-2-15 NMSA 1978 if collected by the department; or
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0022| (2) a fund created pursuant to Section 74-2-16
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0023| NMSA 1978 if collected by a local agency pursuant to a permit
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0024| regulation adopted by the local board pursuant to this
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0025| section."
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0001| Section 3. EMERGENCY.--It is necessary for the public
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0002| peace, health and safety that this act take effect immediately.
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0003|
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0004|
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