0001| SENATE BILL 187 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| MICHAEL S. SANCHEZ | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO THE ENVIRONMENT; MODIFYING THE AIR QUALITY CONTROL | 0012| ACT. | 0013| | 0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0015| Section 1. Section 74-2-2 NMSA 1978 (being Laws 1967, | 0016| Chapter 277, Section 2, as amended) is amended to read: | 0017| "74-2-2. DEFINITIONS.--As used in the Air Quality | 0018| Control Act: | 0019| A. "air contaminant" means any substance, | 0020| including ~[but not limited to]~ any particulate matter, fly | 0021| ash, dust, fumes, gas, mist, smoke, vapor, microorganisms, | 0022| radioactive material, |including source material, special | 0023| nuclear material and byproduct material, as defined by the | 0024| federal Atomic Energy Act of 1954, as amended, or| any | 0025| combination ~[thereof]~ or any decay or reaction product | - 1 - 0001| thereof; | 0002| B. "air pollution" means the emission, except | 0003| emission that occurs in nature, into the outdoor atmosphere of | 0004| one or more air contaminants in quantities and of a duration | 0005| that may with reasonable probability injure human health or | 0006| animal or plant life or as may unreasonably interfere with the | 0007| public welfare, visibility or the reasonable use of property; | 0008| C. "department" means the department of | 0009| environment; | 0010| D. "director" means the administrative head of a | 0011| local agency; | 0012| E. "emission limitation" ~[and]~ |or| "emission | 0013| standard" ~[mean]~ |means| a requirement established by the | 0014| environmental improvement board or the local board, the | 0015| department, the local authority or the local agency or | 0016| ~[pursuant to the federal act]~ |by the federal environmental | 0017| protection agency| that limits the quantity, rate or | 0018| concentration, or combination thereof, of emissions of air | 0019| contaminants on a continuous basis, including any requirements | 0020| relating to the operation or maintenance of a source to | 0021| ~[assure]~ |ensure| continuous reduction |and any design, | 0022| equipment, work practice or operational standard adopted | 0023| pursuant to the Air Quality Control Act or the federal act|; | 0024| F. "federal act" means the federal Clean Air Act, | 0025| |42 U.S.C. Sections 7401, et seq.|, its subsequent amendments | - 2 - 0001| and successor provisions; | 0002| G. "federal standard of performance" means any | 0003| standard of performance, emission limitation or emission | 0004| standard adopted pursuant to ~[42 U.S.C. Section 7411 or | 0005| 7412]~ |Section 111 or 112 of the federal act|; | 0006| H. "hazardous air pollutant" means an air | 0007| contaminant that has been ~[classified]~ |listed| as a | 0008| hazardous air pollutant pursuant to |Section 112 (b) of| the | 0009| federal act; | 0010| I. "local agency" means the administrative agency | 0011| established by a local authority pursuant to Paragraph (2) of | 0012| Subsection A of Section 74-2-4 NMSA 1978; | 0013| J. "local authority" means any of the following | 0014| political subdivisions of the state that have, by following | 0015| the procedure set forth in Subsection A of Section 74-2-4 NMSA | 0016| 1978, assumed jurisdiction for local administration and | 0017| enforcement of the Air Quality Control Act: | 0018| (1) a county that was a class A county as of | 0019| January 1, 1980; or | 0020| (2) a municipality with a population greater | 0021| than one hundred thousand located within a county that was a | 0022| class A county as of January 1, 1980; | 0023| K. "local board" means a municipal, county or | 0024| joint air quality control board created by any local | 0025| authority; | - 3 - 0001| L. "mandatory class I area" means any of the | 0002| following areas in this state that were in existence on August | 0003| 7, 1977: | 0004| (1) national wilderness areas that exceed | 0005| five thousand acres in size; and | 0006| (2) national parks that exceed six thousand | 0007| acres in size; | 0008| M. "modification" means any physical change in, or | 0009| change in the method of operation of, a source that results in | 0010| an increase in the |emission rate or the| potential emission | 0011| rate of any regulated air contaminant emitted by the source or | 0012| that results in the emission of any regulated air contaminant | 0013| not previously emitted, but does not include: | 0014| (1) a change in ownership of the source; | 0015| (2) routine maintenance, repair or | 0016| replacement; | 0017| (3) installation of air pollution control | 0018| equipment, and all related process equipment and materials | 0019| necessary for its operation, undertaken for the purpose of | 0020| complying with regulations adopted by the environmental | 0021| improvement board or the local board or ~[pursuant to the | 0022| federal act]~ |by the federal environmental protection | 0023| agency|; or | 0024| (4) unless previously limited by enforceable | 0025| permit conditions: | - 4 - 0001| (a) an increase in the production rate, | 0002| if such increase does not exceed the operating design capacity | 0003| of the source; | 0004| (b) an increase in the hours of | 0005| operation; or | 0006| (c) use of an alternative fuel or raw | 0007| material if, prior to January 6, 1975, the source was capable | 0008| of accommodating such fuel or raw material or if use of an | 0009| alternate fuel or raw material is caused by any natural gas | 0010| curtailment or emergency allocation or any other lack of | 0011| supply of natural gas; | 0012| N. "nonattainment area" means for any air | 0013| contaminant an area that is designated "nonattainment" with | 0014| respect to that contaminant within the meaning of Section | 0015| 107(d) of the federal act; | 0016| O. "person" includes an individual, partnership, | 0017| corporation, association, the state or political subdivision | 0018| of the state and any agency, department or instrumentality of | 0019| the United States and any of their officers, agents or | 0020| employees; | 0021| P. "potential emission rate" means the emission | 0022| rate of a source at its maximum capacity |to emit a regulated | 0023| air contaminant under its physical and operational design| in | 0024| the absence of air pollution control equipment that is not | 0025| vital to production of the normal product of the source or to | - 5 - 0001| its normal operation. |Any physical or operational limitation | 0002| on the capacity of the source to emit a regulated air | 0003| contaminant, including air pollution control equipment not | 0004| vital to production of the normal product or to normal | 0005| operation, and restrictions on hours of operation or on the | 0006| type or amount of material combusted, stored or processed, | 0007| shall be treated as part of its physical and operational | 0008| design if the limitation or the effect it would have on | 0009| emissions is enforceable pursuant to the Air Quality Control | 0010| Act or is federally enforceable|; | 0011| Q. "regulated air contaminant" means any air | 0012| contaminant, the emission or ambient concentration of which is | 0013| regulated pursuant to the Air Quality Control Act or the | 0014| federal act; | 0015| R. "secretary" means the secretary of environment; | 0016| S. "significant deterioration" means any increase | 0017| in the ambient concentrations of any air contaminant above the | 0018| levels allowed by the federal act or federal regulations for | 0019| that air contaminant in the area within which the increase | 0020| occurs; | 0021| T. "source" means any structure, building, | 0022| equipment, facility, installation or operation that emits or | 0023| may emit any air contaminant; | 0024| U. "standard of performance" means a requirement | 0025| of continuous emission reduction, including any requirement | - 6 - 0001| relating to operation or maintenance of a source to ~[assure]~ | 0002| |ensure| continuous emission reduction; | 0003| V. "state implementation plan" means any plan | 0004| submitted by New Mexico to the federal environmental | 0005| protection agency pursuant to ~[42 U.S.C. Section 7410]~ | 0006| |Section 110 of the federal act|; and | 0007| W. "toxic air pollutant" means any air | 0008| contaminant, except a hazardous air pollutant, classified by | 0009| the environmental improvement board or the local board as a | 0010| toxic air pollutant." | 0011| Section 2. Section 74-2-7 NMSA 1978 (being Laws 1972, | 0012| Chapter 51, Section 4, as amended) is amended to read: | 0013| "74-2-7. PERMITS--PERMIT APPEALS TO THE ENVIRONMENTAL | 0014| IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.-- | 0015| A. By regulation, the environmental improvement | 0016| board or the local board shall require: | 0017| (1) any person intending to construct or | 0018| modify any source, except as otherwise specifically provided | 0019| by regulation, to obtain a construction permit from the | 0020| department or the local agency prior to such construction or | 0021| modification; and | 0022| (2) any person intending to operate any | 0023| source for which an operating permit is required by ~[the 1990 | 0024| amendments to]~ the federal act, except as otherwise | 0025| specifically provided by regulation, to obtain an operating | - 7 - 0001| permit from the department or the local agency. | 0002| B. Regulations adopted by the environmental | 0003| improvement board or the local board shall include at least | 0004| the following ~[provisions]~: | 0005| (1) requirements for |permit applications, | 0006| including requirements for| the submission of: | 0007| |(a)| relevant information ~[including | 0008| but not limited to information]~ the department or the local | 0009| agency deems necessary to ~[ensure that]~ |determine: 1) | 0010| whether the applicable standards|, regulations and ~[standards | 0011| under]~ |requirements pursuant to| the Air Quality Control Act | 0012| ~[or]~ |and| the federal act will ~[not]~ be violated; |and 2) | 0013| the amount of applicable fees; and| | 0014| |(b) for permit applications that | 0015| request terms and conditions, information to support the terms | 0016| and conditions|; | 0017| (2) specification of the deadlines for | 0018| processing permit applications; provided the deadline for a | 0019| final decision by the department or the local agency on a | 0020| construction permit application may not exceed: | 0021| (a) one hundred eighty days after the | 0022| application is determined to be complete, if the application | 0023| is not ~[affected by requirements for prevention of]~ |subject | 0024| to regulations to prevent| significant deterioration |of air | 0025| quality|; or | - 8 - 0001| (b) two hundred forty days after the | 0002| application is determined to be complete, if the application | 0003| is ~[affected by requirements for prevention of]~ |subject to | 0004| regulations to prevent| significant deterioration |of air | 0005| quality|; | 0006| (3) specification of the public notice, | 0007| comment period and public hearing, if any, required prior to | 0008| the issuance of a permit; provided the ~[permit]~ regulations | 0009| adopted: | 0010| (a) by the environmental improvement | 0011| board shall include provisions governing notice to nearby | 0012| states; and | 0013| (b) by any local board shall include | 0014| provisions requiring that notice be given to the department of | 0015| all permit applications by any source that emits, or has a | 0016| potential emission rate of, one hundred tons per year or more | 0017| of any regulated air contaminant, including any source of | 0018| fugitive emissions of each regulated air contaminant, at least | 0019| sixty days prior to the date on which construction or major | 0020| modification is to commence; | 0021| (4) a schedule of construction permit fees | 0022| sufficient to cover: | 0023| (a) the reasonable costs of reviewing | 0024| and acting upon any application for such permit; and | 0025| (b) the reasonable costs of | - 9 - 0001| implementing and enforcing the terms and conditions of the | 0002| permit, excluding any court costs or other costs associated | 0003| with an enforcement action; | 0004| (5) a schedule of emission fees consistent | 0005| with the provisions of Section 502(b)(3) of ~[the 1990 | 0006| amendments to]~ the federal act; | 0007| (6) specification of the maximum length of | 0008| time for which a permit shall be valid; provided that for an | 0009| operating permit, such period may not exceed five years; | 0010| ~[and]~ | 0011| (7) for an operating permit only: | 0012| (a) provisions consistent with Sections | 0013| 502(b) and 505(b) of the federal act providing: 1) notice to | 0014| and review and comment by the ~[United States]~ |federal| | 0015| environmental protection agency; and 2) that if the department | 0016| or local agency receives notice of objection from the ~[United | 0017| States]~ |federal| environmental protection agency before the | 0018| operating permit is issued, the department or the local agency | 0019| shall not issue the permit unless it is revised and issued | 0020| under Section 505(c) of the federal act; | 0021| (b) provisions governing renewal of the | 0022| operating permit; and | 0023| (c) specification of the conditions | 0024| under which the operating permit may be terminated, modified | 0025| or revoked and reissued prior to the expiration of the term of | - 10 - 0001| the operating permit; |and| | 0002| |(8) for construction permits only, | 0003| specification of the conditions under which the construction | 0004| permit may be terminated, modified or revoked|. | 0005| C. The department or the local agency may deny any | 0006| application for: | 0007| (1) a construction permit if it appears that | 0008| the construction or modification: | 0009| |(a)| will not meet applicable | 0010| |standards, regulations or| requirements ~[of]~ |pursuant to| | 0011| the Air Quality Control Act |or| the federal act; ~[or any | 0012| regulation adopted pursuant to either; or | 0013| (2) an operating permit if: | 0014| (a) the source for which the permit is | 0015| sought will emit a hazardous air pollutant or any air | 0016| contaminant in excess of a federal standard of performance or | 0017| a regulation of the environmental improvement board or the | 0018| local board]~ | 0019| (b) ~[it appears that the source for | 0020| which the permit is sought]~ will cause or contribute to air | 0021| contaminant levels in excess of any national or state |ambient | 0022| air quality| standard or, within the boundaries of a local | 0023| authority, applicable local ambient air quality standards; or | 0024| (c) |will violate| any other provision | 0025| of the Air Quality Control Act or the federal act; ~[will be | - 11 - 0001| violated]~ |and| | 0002| |(2) an operating permit if the source will | 0003| not meet the applicable standards, regulations or requirements | 0004| under the Air Quality Control Act or the federal act|. | 0005| D. The department or the local agency may specify | 0006| |terms and| conditions to any permit granted under this | 0007| section, including: | 0008| (1) for a construction permit: | 0009| |(a)| a requirement that such source | 0010| install and operate control technology, determined on a case- | 0011| by-case basis, sufficient to meet the |applicable standards, | 0012| regulations and| requirements ~[of]~ |pursuant to| the Air | 0013| Quality Control Act |and| the federal act; ~[and regulations | 0014| promulgated pursuant to either; and | 0015| (2) for an operating permit: | 0016| (a) imposition of]~ |(b)| individual | 0017| emission limits, determined on a case-by-case basis, but only | 0018| as restrictive as necessary to ~[meet the]~ |ensure compliance | 0019| with the applicable standards, regulations and| requirements | 0020| ~[of]~ |pursuant to| the Air Quality Control Act and the | 0021| federal act or the emission rate specified in the | 0022| ~[operating]~ permit application, whichever is more stringent; | 0023| |(c) at the request of the applicant, | 0024| emission limitations and other conditions that are more | 0025| stringent than necessary to ensure compliance with the | - 12 - 0001| applicable standards, regulations and requirements pursuant to | 0002| the Air Quality Control Act and the federal act, including | 0003| enforceable conditions to limit the potential emission rate of | 0004| the source|; | 0005| ~[(b)]~ |(d)| compliance with | 0006| applicable federal standards of performance; | 0007| ~[(c) imposition of]~ |(e)| reasonable | 0008| restrictions and limitations not relating to emission limits | 0009| or emission rates; or | 0010| ~[(d)]~ |(f)| any combination of the | 0011| |terms and| conditions listed above; |and| | 0012| |(2) for an operating permit, terms and | 0013| conditions sufficient to ensure compliance with the applicable | 0014| standards, regulations and requirements pursuant to the Air | 0015| Quality Control Act and the federal act, including pertinent | 0016| terms and conditions in a construction permit, as determined | 0017| by the department or the local agency|. | 0018| E. This section does not authorize the department | 0019| or the local agency to require the use of machinery, devices | 0020| or equipment from a particular manufacturer if the federal | 0021| standards of performance, state regulations and permit | 0022| conditions may be met by machinery, devices or equipment | 0023| otherwise available. | 0024| F. The issuance of a permit does not relieve any | 0025| person from the responsibility of complying with the | - 13 - 0001| provisions of the Air Quality Control Act and any applicable | 0002| regulations of the environmental improvement board or the | 0003| local board. Any |terms or| conditions ~[placed upon]~ | 0004| |specified in| a permit by the department or the local agency | 0005| shall be enforceable to the same extent as a regulation of its | 0006| board. | 0007| G. Any person who participated in a permitting | 0008| action before the department or the local agency shall be | 0009| notified by the department or the local agency of the action | 0010| taken and the reasons for the action. Notification of the | 0011| applicant shall be by certified mail. | 0012| H. Any person who participated in a permitting | 0013| action before the department or the local agency and who is | 0014| adversely affected by such permitting action may file a | 0015| petition for hearing before the environmental improvement | 0016| board or the local board. The petition shall be made in | 0017| writing to the environmental improvement board or the local | 0018| board within thirty days from the date notice is given of the | 0019| department's or the local agency's action. Unless a timely | 0020| ~[request]~ |petition| for hearing is made, the decision of | 0021| the department or the local agency shall be final. | 0022| I. If a timely petition for hearing is made, the | 0023| environmental improvement board or the local board shall hold | 0024| a hearing within ninety days after receipt of the petition. | 0025| The environmental improvement board or the local board shall | - 14 - 0001| notify the petitioner and the applicant or permittee, if other | 0002| than the petitioner, by certified mail of the date, time and | 0003| place of the hearing. If the subject of the petition is a | 0004| permitting action deemed by the environmental improvement | 0005| board or the local board to substantially affect the public | 0006| interest, the environmental improvement board or the local | 0007| board shall ensure that the public receives notice of the | 0008| date, time and place of the hearing. The public in such | 0009| circumstances shall also be given a reasonable opportunity to | 0010| submit data, views or arguments orally or in writing and to | 0011| examine witnesses testifying at the hearing. Any person | 0012| submitting data, views or arguments orally or in writing shall | 0013| be subject to examination at the hearing. | 0014| J. The environmental improvement board or the | 0015| local board may designate a hearing officer to take evidence | 0016| in the hearing. All hearings shall be recorded. | 0017| K. The burden of proof shall be upon the | 0018| petitioner. Based upon the evidence presented at the hearing, | 0019| the environmental improvement board or the local board shall | 0020| sustain, modify or reverse the action of the department or the | 0021| local agency respectively. | 0022| L. Notwithstanding any other provision of law and | 0023| subject to the provisions of Section 74-2-4 NMSA 1978, a final | 0024| decision on a permit by the department, the environmental | 0025| improvement board, the local agency, the local board or the | - 15 - 0001| court of appeals that a ~[new]~ source will or will not meet | 0002| applicable local, state and federal air pollution standards | 0003| and regulations shall be conclusive and is binding on every | 0004| other state agency and as an issue before any other state | 0005| agency shall be deemed resolved in accordance with that final | 0006| decision. | 0007| M. Subject to the provisions of Section 74-2-4 | 0008| NMSA 1978, if the local board has adopted a permit regulation | 0009| pursuant to this section, persons ~[constructing or modifying | 0010| any new source]~ |intending to construct or modify a source or | 0011| to operate a source for which a construction permit or an | 0012| operating permit is required| within the boundaries of the | 0013| local authority shall obtain a permit from the local agency | 0014| and not from the department. | 0015| N. Fees collected pursuant to this section shall | 0016| be deposited in: | 0017| (1) the state air quality permit fund created | 0018| by Section 74-2-15 NMSA 1978 if collected by the department; | 0019| or | 0020| (2) a fund created pursuant to Section | 0021| 74-2-16 NMSA 1978 if collected by a local agency pursuant to a | 0022| permit regulation adopted by the local board pursuant to this | 0023| section." | 0024| Section 3. TEMPORARY PROVISION--EFFECT OF EXISTING | 0025| REGULATIONS.--A regulation of the environmental improvement | - 16 - 0001| board or a local board that is inconsistent with this 1998 act | 0002| shall remain in full force and effect until amended or | 0003| repealed. |