. H

COUNTY OF BERNALILLO

COUNTY COMMISSION ORDINANCE NO. BB-45

AN antH NAKCE

RELATING TO AIR POLLUTION, AMENDING THE PROVISIONS OF ORDINANCE NO. B4-44

DELETING A PHRASE THAT IS IN CONFLICT HITH STATE LAH PERTAINING TO FEDERAL

REGULATIONS, REPEALING ORDINANCES NO. B4-44 AND B7-1D AFTER COMBINING THE

PROVISIONS THEREOF HHICH ENABLE THE JOINT AIR QUALITY CONTROL BOARD

HEREIN. THIS ORDINANCE PRESCRIBES POHERS AND DUTIES OF THE BOARD

PROVIDING FOR THE ADOPTION. ADMINISTRATION AND ENFORCEMENT OF REGULATIONS;

PROVIDING FOR VARIANCES; PROVIDING FOR PERMITS; PROVIDING FOR SPECIAL

REGULATIONS EQUAL TO FEDERAL REQUIREMENTS FOR PREVENTION OF SIGNIFICANT

DETERIORATION, NEH SOURCE PERFORMANCE STANDARDS AND NATIONAL EMISSIONS

STANDARDS FOR HAZARDOUS AIR POLLUTANTS.

BE IT ORDAINED BY THE COUNTY COMMISSION. THE GOVERNING BODY OF THE

COUNTY OF BERNALILLO. NEH MEXICO:

SECTION I. Short title.

This OrdInance may be cited as the "Joint AIr Quality Control Board

Ordlna.nce."

SECTION Z. DefInItions.

As provIded In the AIr QualIty Control Act. the followIng defInitions

shall apply to terms used In thIs OrdInance:

A. "air contamInant" means any substance. InclUdIng but not

lImIted to any particulate matter, fly ash, dust. fumes. gas. mist. smo~e,

vapor, mIcro-organIsms, radioactive mater1als. any combinatIon thereof or

any decay or reaction product thereof;

8. "air pollution" means the emission. except as such emIssion

occurs tn nature, Into the outdoor atmosphere of one or more air

contamInants tn such quantitIes and duration as may with reasonable

probability Injure human health, animal or plant lIfe. or as may

unreasonably Interfere wIth the publIc welfare. vIsibility or the

Attachment H
.. ..

reasonable use of property;

C. I'board" means the Albuquerque-Bernalillo County air Quail ty

control board created by this Ord1nance;

D. "delayed compliance order" means any federal1y tssued order

pursuant to the federal act or any assurance of dlscont1nuance accepted by

the board pursuant to the AIr QualIty Control Act, applIcable to a source,

postponIng the date requIred for compliance by such source with any

requirement of. any requirement established pursuant to or any requirement

continued In effect by the AIr QualIty Control Act or the federal act;

E. "department.. means the administratIve agency of the

Albuquerque-BernalIllo County aIr qualIty control board;

F. "director" means the administrative head of the department:

G. "emIssIon ltm1tat1on" and "emhston standard" mean a

requirement established by the board, the department. or pursuant to the

federal act whIch 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 reduct'on;

H. "envlronmental Improvement divisIon" means the envIronmental

Improvement divisIon of the state of New Hexlco health and envIronment

department;

1. "federal act" means the Clean AIr Act, 42 U.S.C. SectIons

7401 through 7642;

J. "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;

K. "hazardous air pollutant" means an alr contamInant whtch has

been classIfied as a hazardous air pollutant pursuant to the federal act;

t. "mandatory class I area B means any of the followlng areas In

the state of New Hexlco which were In existence on August 7,1977:

(I) national wilderness areas which exceed five thousand

acres In s1ze; and

(2) natIonal parks which exceed six thousand acres In size;

2
H. "modificatIon" means any physical change In, or change In

the method of operation of, a source which results In an Increase 1n the

potenttal emIssion rate of any regulated a1r contamtnant emitted by the

source or wh1ch results In the emission of any regulated air contamInant

not previously emItted, but does not Include:

(1) a change tn ownersh1p of the source;

(2) routtne maintenance, repaIr or replacement;

(3) JnstaJlat10n of air pollution control equipment, and

all related process equtpment and mater1als necessary for Its operation,

undertaken for the purpose of complyIng with regulatIons adopted by the

board or pursuant to the federal act; or

(4) unless prevIously 11ml ted by enforceable permit

conditions:

(a) an Increase In the productIon rate, If such

tncrease 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 wa s capab le to accOl1ll1Oda tl ng such

fuel or raw materhl, 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. ·nonatta'nment area" for any aIr contamInant means any

federally designated geographIcal area of Hew Hexlco wIthIn whIch a

national ambient air quality standard for that aIr contaminant Is beIng

exceeded;

O. "person" means any 1ndlvldual, partnership, firm, publIc or

private corporation, associatIon, trust, estate, political subdIvision or

agency, or any other legal entity or their legal representatives, agents

or assigns;

P. ·potentlal emissIon rate· .means the emission rate of a

source at lts maximum capac1ty In the absence of air pollution control

equipment Which Is not vital to production of the normal product of the

source or to Its normal operation;

3
Q. "regulated air contaminant" means any air contamlnant. the

emissIon or ambIent concentration of whIch Is regulated pursuant to the

Air Quality Control Act or the federal act;

R. "slgn1flcant deterioration" means any Increase In the

ambient concentratIons of any a1r contaminant above the levels allowed by

the federal act or federal regulatIons for that air contamInant In the

area wlth1n wh1ch the Increase occurs:

S. "source" meanS any structure, building. equipment. facll1ty,

Installation or operat1on which emits or may emit any a1r contaminant;

T. "standard of performance" meanS a requ1rement of contlnous

emlss10n reduction. 1nclud1ng any requirement reJatlng to operation or

maintenance of a source to assure contlnous emission reduction; and

U. "state Implementation plan" means any plan submitted by the

state of Hew MexIco to the federal environmental protectIon agency

pursuant to 42 U.S.C. Section 7410.

SECTION 3. JoInt air quality control board.

A. In accordance With the Hew MexIco Air Quality Control Act, a

Joint air quality control board to be known as the Albuquerque-BernalIllo

County Air Quality Control Board Is hereby created. The metropolitan

environmental health advisory board, establIshed by city and county

Metropolitan EnvIronmental Nealth Advisory Board Ordinances, Is the Atr

QualIty Control Board for the county of BernalIllo and the city of

Albuquerque. A maJortty of the board constitutes a quorum,

B. The board shall administer and enforce the Atr Quality

Control Act and any regulatIons relating to air pollutIon appltcable

wlthtn Albuquerque and Bernalillo County.

C. The director of the department shall keep full minutes of

all transactions and proceedings of the board under the Air Quality

Control Act and shall perform dutIes under the Act prescrtbed by the

board. The dIrector ts the custodtan of all flies and records of the

board, and shall meet with the board but not vote.

O. Staff for admInIstratIon and enforcement of the Air Quality

Control Act, the ,Joint Atr Quality Control Board Ordinance and any

4
regulatIons pursuant thereto and any other laws relatIng to aIr pollutIon

applicable withIn Albuquerque and Bernalillo County shall be provided by

the cIty of Albuquerque.

SECTION 4. DutTes and powers of the board.

A. The board In accordance with the Air QualIty Control Act,

shall prevent or abate aIr pollutIon within the city of Albuquerque and

county of aernallllo.

a. The board shall:

OJ adopt, promUlgate, pUblish. amend and repeal

regulatIons consIstent wIth the AIr QualIty Control Act and thIs Ordinance

to prevent or abate aIr pollution. IncludIng regulat10ns prescrtblng aIr

standards withIn the geographic area of the board's jurisdIctIon, or any

part thereof. RegulatIons may 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

nonattalnment areas; provided that such regulations 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, preventIon of sIgnIfIcant deterioration and nonattalnment

areas and shall be applicable only to sources subject to such regulation

pursuant to the federal act. Regulations may also prescrIbe standards of

performance for sources and emlsston standards for hazardous at r

pollutants, provIded that such regulations shall be no more strIngent than

but at least as stringent as required by federal standards of performance

and shall be applicable only to sources subject to such federal standards

of performance. Any regulations shall not specify the method to be used

to prevent or abate aIr pollution. Any regulation promulgated under this

section shall be consIstent wIth federal law, If any, relating to control

of motor vehicle emissIon. In making Its regulations, the board shall

gIve weight It deems approprIate to all facts and circumstances, IncludIng

but not 11m! ted to:

<aJ character and degree of Injury to, or

Interference with, health, welfare, vIsIbility and property;

5
(b) the public Interest, Including the social and

econom1c value of the sources and sUbjects of air contaminants;

(c) technical practicability and economic

reasonableness of reducing or elIminatIng aIr contamInants from the

$ources Involved and previous experience wIth eQuipment and methods

available to control the air contaminants Involved;

(2) Develop facts and make Investigations and studies

consistent with the Air Quality Control Act and this Ordinance, and In

connection therewith, enter at all reasonable times In or upon any pr1vate

or public property, e,cept private residences, whIch the board has

reasonab1e cause to be 1teve ts or will become a source of aIr

contalmlnants contributing to air pollution, and require the productIon of

Information relating to emissions which 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 thereof

shall be furnished to the owner or occupants of the premises InvestIgated

before the action Is fIled.

(]) cause to be InstItuted legal proceedIngs to compel

complIance with the Air QualIty Control Act, thIs OrdInance or any

regulatIon of the board;

(4) advise, consult, contract and cooperate with

municipalities, counties, other states, the federal government and other

Interested persons or groups In regard to matters of COlm!On Interest t"

the field of aIr Quality control, and Initiate cooperative action between

munlctpalltles, counties and the board, or any combInation thereof. for

control of air pollutIon In areas havIng related aIr pollution problems

that overlap the boundarIes Of polItIcal subdivisIons.

(5) encourage and make every reasonable effort to obtain

voluntary cooperation by persons .1n the preservation, the restoration, or

the Improvement of air purity;

(6) consult with any person proposIng to construct,

Install or otherwise acquire an air contamInant source or device or system

for the control thereof, concerning the efficiency of the devIce or

6
system, or the aIr pollUtion problem which may be related to the source,

device or system. Nothing In any such consultation relIeves any person

from compl Iance wI th the AIr Quality Control Act, thl s Ordl nance,

regulations In force pursuant thereto, or any other provIsion of law.

(7) accept. receive and administer grants or other funds

or gifts from publIc and prIvate agencIes, IncludIng the federal

government or from any person;

(8) classify and record air contaminant sources whlch, tn

Its judgement, may cause or contribute to aIr pollution accordIng to

levels and types of emissions and other characteristics which relate to

air pollutIon. ClassIfIcatIons made pursuant In thIs paragraph may be for

applIcatIon to cIty and county as a whole or to any desIgnated area of the

city and county, and shall be made with special reference to effects on

health, economIc and socIal factors and physIcal effects on property; and

(9) develop and adopt a plan or plans for the regulatIon.

control, preventIon or abatement of aIr pollution, recognIZing the

differences, needs, requIrements and conditions In the different areas of

the cIty and county.

C. The board may adopt regulatIons requirIng notIce of the

board of the Intent to Introduce or permit the Introduction of an aIr

contamInant Into the aIr of cIty and county.

O. The board may, by regulation, requIre any person emitting an

aIr contamInant to:

(1) Install, use and maIntain emissIon monItorIng devices;

(2) sample emissions In accordance wIth methods and at

locations and Intervals as may be prescrtbed by the board;

(3) establish and maIntaIn records of the nature and

amount of emissions;

(4) submIt reports regardIng the nature and amounts of

emissions and the performance of em1ssJon control deVices; and

(5) provIde any other Information relating to the emIssion

of air contaminants.

SECTION 5. Adoption of regulatIons; notIce and hearIngs.

7
No regulatton or emlsston control requtrement or amendment or repeal

thereof shall be adopted until after a public hearing by the board.

NotIce of the hearIng shall be gIven at least thIrty (30) days prIor to

the hear Ing date and shall state the subjec t, the tl me and pIace of the

hearing and the manner tn which Interested persons may present thefr

vtews. The notice shall also state where tnterested 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 city and

county. Reasonable effort shall be made to give nottce to all persons who

have made a written request to the board for advance notIce of Its

hearings. At the hearing, the board shall allow all Interested persons

reasonable opportunUy to submU data. views or arguments orally or In

Writing and to ..amine witnesses testIfyIng at the hearing. Any person

heard or represented at the hearIng shall be gIven wrItten notIce of the

actIon of the board. The board may designate a hearIng officer to take

evIdence In the hearing. No regulatIon or emissIons control requIrement

or amendment or repeal thereof adopted by the board shall become effectIve

untIl thIrty (30) days after Its fIlIng under the State Rules Act.

SECTION 6. PermIts.

A. By regUlatIon, the board may requIre persons preparIng for

any constructIng or modifying any new source of aIr contamInant to obtaIn

a permit from the department prIor to the construction or modifIcatIon.

Such regulatIons may Include requIrements relatIng to prevention of

sIgnifIcant deterIoratIon and to constructIon 'n nonattalnment areas;

provIded that such requIrements shall be no more strIngent than but at

least as stringent as required under the federal act and regulations

adopted pursuant thereto.

B. PrIor to the Issuance of a permit, the department shall

requIre the submission of plans, specificatIons, and other relevant

InformatIon which It deems necessary IncludIng InformatIon the department

deems necessary to ensure that regulatlons and standards under th's

OrdInance, the air quality control regulatIons of the board, the AIr

Quality Control Act or the federal act are not vIolated.

8
C. The department may deny any applIcation for a permit If:

(J) It appears that the construction or modlncatlon will

not meet applicable regulat1ons;

(2) the con,tructlon or modIfIcatIon wIll emIt a hazardou,

a1r pollutant or atr contaminant In excess of a federal standard of

performance, or a regulation of the board;

(3) It appear, that the con,tructlon or modifIcatIon will

cause or contrtbute to air contaminant levels In excess of any nat10nal or

.tate, or applIcable local ambient air qualIty ,tandard,; or

(4) any provl,lon of the AIr Quality Control Act wIll be

violated.

D. The department 'hall, withIn thirty day, review any

applIcatIon .ubmltted for completene.,. If the applIcatIon " judged

complete, a letter to that effect ,hall be .ent to the applIcant. If the

application I. judged Incomplete, a letter 'hall be ,ent to the applIcant

.tatlng what additIonal Information or poInt' of clarIfIcation are

necessary to judge the applIcatIon complete. The department 'hall, as

.oon .. practIcable but not to exceed one hundred twenty day. or one

hundred eIghty day. If there Is a hearing after the filing of a complete

applIcatIon for a permit, either grant, grant .ubject to conditIons or

deny the permit for the constructIon or modIficatIon of a .ource.

L This sectIon does not authorIze the department to requIre

the use of machinery, devIce' or equIpment from a partIcular manufacturer

1f the federal .tandard' of performance and ,tate regulation, or

regulation of the board may be met by machinery, devices or equipment

otherwl,e avaIlable.

F. The board may provide by regulatIon a schedule of fee, for

permit' ,ufflclent to cover the reasonable co,t, of revIewIng and acting

upon any applIcatIon for ,uch permIt and the rea'onable co,t, of

Implementing and enforcing the term, and conditIon, of the permIt,

excludlnq any court costs or other costs associated with an enforcement

actIon. InitIal fee' are to be paId at the time the applicatIon for the

permIt I' fIled, and ,ub,equent fees, If any, are to be paid a' determined

9
...

by the dIrector. Fees collected, pursuant to thIs section, shall be

deposited In the general fund of the city of Albuquerque, If the

application 15 for a new source within the city, or 1n the general fund of

the county of Bernalillo, If the application Is for a new source located

outside the city, but within the county.

G. The Issuance of a perm1t does not relieve any ,person from

the responsIbility of «)mplylng with the provisions of the AIr Quality

Control Act, this Ordinance and any applicable regulatIons of the board.

Any condItions placed upon a permIt by the department shall be enforceable

to the same extent as a regulat10n of the board.

H. If the department den1 es a perml t or grants the perml t

sUbject to condItions, the department must notify the applIcant by

certifIed mall of the actIon taken and the reasons therefor. If the

applicant Is dissatisfied wIth the actIon taken by the department, he may

request a hearIng before the board. The request must be made In writIng

to the dIrector of the department within thIrty days after notIce of the

department's action has been received by the applicant. Unless a timely

request for hearIng Is made, the decIsion of the department shall be fInal.

I. If a tImely request for hearIng Is made, the board shall

hold a hearing withIn thirty days after receIpt of the request. The

department shall notIfy the applIcant by certIfIed mall of the date, tIme

and place of the hearIng. In the hearIng, the burden of proof shall be

upon the applicant. The board may desIgnate a hearing offIcer to take

evidence In the hearing. Based upon the evIdence presented at the

hearing, the board shall sustain, IOOdlfy or reverse the actIOn of the

department.

J. An applicant may appeal the decision of the board by filIng

wIth the court of appeals a notIce of appeal within thIrty days after the

date the decision Is made. The appeal must be on the record made at the

hearIng. The applIcant shall certIfy In his notice of appeal that

arrangements have been made with the board for preparat10n of a sufficIent

number of transcrIpts of the record of the hearing On whIch the appeal

depends to support hIs appeal to the court. at the expense of the

10
applIcant, Including two copIes whIch he shall furnish to the board. Upon

appeal, the court of appeals shall set aside the decIsion of the board

only If found to be:

(1) arbItrary, caprIcIous or an abuse of dIscretion;

(2) not supported by substantial evidence In the record; or

(3) otherw1se not to accordance wIth law.

K. The board shall adopt such regulations as are necessary to

Implement this section, IncludIng regulatIons governIng the deadlines for

process Ing permit app11 ca tlons and the pUb 11 c not! ce, comment per Iod and

publIc hearing, If any, requIred prIor to the Issuance of a permit.

L. The department shall provIde notIce to the envIronmental

Improvement divisIon of all permit applicatIons by any source which emIts.

or has a potential emIssion rate of one hundred tons per year or mofe of

any regulated all' contamInant, IncludIng any sOUrce of fugitive eml,,'ons

of each regulated all' contamInant at least sIxty days prior to the date on

whIch constructIon or major modIfIcatIon Is to commence.

H. (ll Except as otherwise provided In Paragraph (2) of this

subsection, the department may specIfy conditIons to any permit granted

under thIs sectIon. Such condItions may Include:

(a) placement of IndivIdual eml"lon lImits

determIned on a case-by-case basis on the source for which to permit Is

Issued, but such IndivIdual emissIon limIts shall be only as restrIctive

as the more strIngent of the followIng:

(1) the extent necessary to meet the

requIrements of thIs Ordinance, the AII' Quail ty Control Act and the

federal act; or

(2) the eml sston rate specIfIed In the permit

applIcatIon.

(bl a requ'rement that such source Install and

operate control technology, determIned on a case-by-case basIs, sufficIent

to meet the requirements, pertaInIng to preventIon of signifIcant

detertoratlon or to sources locatIng In nonattatnment areas,. of this

OrdInance, the AII' Quality Control Act and the federal act, and

11
·.

regulatIons promulgated under such ordInance and acts;

(c) compliance wI th applIcable federal standards of

performance:

(d) ImpositIon of reasonable restrIctions and

limitations other than restrIctions and limItations relatIng to emIssion

lImIts or emissIon rates; or

(e) any combInation of the above.

(ll In the case of a modIficatIon, the reqUirements of

Paragraph (1) of thIs subsection apply only to the facility or facIlities

Involved In such modification.

N. Persons construct1ng or modlfytng any new source requ1rlng a

permtt. which new source Is wlth1n the confines of the boardls

jurIsdictIon under the Air QualIty Control Act, must obtaIn a permit from

the department and not from the environmental Improvement dlvl,lon.

SECTION 7. Variances.

A. The board may grant an IndivIdual variance from the

lImitatIons prescrlbed under the AIr Quality Control Act, this Ordinance

or any regulation of the board, or any permit conditIon whenever It Is

found, upon pre,entatlon of adequate proof, that compliance wIth any part

of the Air Quality Control Act, thIs Ordinance. any regulatIon of the

board, or any permit conditIon will result In an arbitrary and

unreasonable takIng of property or will Impose an undue economic burden

upon any lawful busIness, occupation or activity, and that the granting of

the varIance will not result In a condition Injurious to health or safety.

B. No variance shall be granted pursuant to this section until

the board has consIdered the relatIve Interests of the applicant, the

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

requIrement, of Subsection A of this section -and for time periods and

under conditions consIstent with the reasons therefor, and with In the

followIng limitations:

(1) If the variance Is granted on the ground that there Is

12
no practIcable means known or avaIlable for the adequate prevention,

abatement or control of the atr pollution Involved. 't shall be only until

the necessary means for prevention. abatement or control become known and

avaIlable;

(2) If the varIance Is granted on the grounds that

complIance wIth the partIcular requIrement or requirements from whIch

varIance 1$ sought w111 necessitate the ta~lng of measures wh1ch, because

of their extent or cost, must be spread OVer a considerable period of

tIme, It shall. be for a perIod not to e>ceed such reasonable tIme as. In

the vIew of the board, Is requIsite for the tal<lng of the necessary

measures. A varIance granted on the grounds 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 relfeve 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.

O. Any person seel<lng a varIance shall do so by filing a

petl tton for varIance wlth the dl rector. The dl rector shall promptly

Investigate the petitIon and make recOlllllendatlons to the board as to the

disposition thereof. Upon receiving the recommendatIon of the dIrector

the board shall, If the recommendation favors a variance, hold a public

hearing prIor to the grantIng of any varIance. If the board Is opposed to

the grantIng of any variance, then a hearing shall be held upon the

request of the petItioner, and In such hearings the burden of proof shall

be upon the petlttoner.

SECTION 8. VarIances; judIcial revIew.

A. Any person to whom the board denIes a variance, after a

hearIng, 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 after the board's denIal.

B. The procedure for perfecting an appeal to the court of

appeals under thIs section consIsts of the tImely filing of a notice of

13
appeal, In the court of appeals, with an attached copy of the regulatIon

or permit conditIon from which the variance was sought and denIed, a copy

of the var fance request and a copy of the board's find Ings and order. 1f

any, denying the varIance requested. The appellant shall certify In his

notl ce of appeal that arrangements have been made with the board for

preparation, at the appellant's expense, of a suffIcIent number of

transcripts of the record of the hearing on which the appeal depends, to

support hIs appeal to the court, Including three caples which he shall

furnish to the board. Such appeal shall be prosecuted In the same manner

as other c'vll cases.

C. Upon appeal, the court of appeals shall set aside the

board's denIal of the variance request only If found to be:

(1) arbitrary, capricIous or an abuse of dIscretIon;

(2) not supported by substantIal evIdence In the record; or

(3) olherw!se not In accordance wIth law.

O. The appellant may apply to the court of appeals for a stay

of enforcement of the board's order pending the determinatIon of such

appeal. The court of appeals may, upon hearIng before the court and upon

good cause shown, grant such stay.

SECTION 9. Energency procedure.

NotWithstanding provisions of the Air Quality Control Act, Or any

regulatIon of the board, If the dIrector of the department determInes that

any person Is causIng or contrIbutIng to aIr pollution of such

characteristIcs and duration as to create an emergency whIch requIres

t...edlate action to protect human health Or safety, the dIrector of the

department shall order the person to reduce Or cease ImmedIately the

emission of aIr contamInants creating the emergency condition. If the

effectiveness of the order Is to continue beyond forty-eight hours, the

dIrector of the department shall file In the district court, not later

than forty-eIght hours after the date of the order, an acllon to extend

the effectiveness of the order.

SECTION 10. ConfidentIal Information; lImitations on regulation.

A. Any records or other Information furnished to or obtained by

14
the board or the department concerning aIr contaminant sources relatIng to

processes or production technIques unique to the owner or operator and

relatIng to the profits and costs of the owner or operator which have not

previously been released to the pUblIC, are confidential If specifically

marked as confIdential at the time such Items are submItted, and shall not

be made a part of any publIc record unless the person expressly agrees to

Its publicatIon. This does not limit the use of such records or

Information In any civil or crIminal action, subject to such protection

that the court may gIve. or prohIbIt the release of Information concerning

the nature and amount of emissions from any source.

8. The AIr Quality Control Act and thIs Ordinance do not:

(I) authorize the board to make any regulatIon wIth

respect to any condItIon or quality of the outdoor atroosphere If the

conditIon or air quality level and Its effects are confined entirely

wIthIn the boundaries of the IndustrIal or manufacturing property within

whIch the aIr contaminants are or may be emitted and publlc access Is

restrIcted withIn such boundaries;

(2) grant to the board any JurisdictIon or authority

affecting the relatIon between employers and employees wIth respect to or

arisIng out of any condItion of aIr quality level; or

(3) supercede or limIt the applicabilIty of any law

relatIng to IndustrIal health, safety or sanitatIon.

SECTION 11. Enforcement.

A. If, as a result of InvestigatIon. the board has good cause

to belleve that any person 1s VIolating any provisIon of the Air Quallty

Control Act, thIs OrdInance, any regulation of the board, any permit

conditIon, or any emergency order of the dIrector and If the department Is

unable wIthin a reasonable time to obtaIn voluntary cooperation to prevent

aIr pollution, the department may cause an actIon for InjunctIon or other

approprIate relief to be filed In the distrIct court to secure the

abatement of the emission of air contamInants or compliance with the

provisIons of the Air Quality Control Act, regUlatIon or emergency order.

8. In any actIon to enforce the provIsIons of any city

15
ordinance adopted In accordance with the provisions of the AIr Quality

Control Act to enforce any regulation of the board within the cl ty, the

board and the cIty shall be represented by the city attorney.

C. In any action to enforce the provision of any county

ordinance adopted In accordance with the AIr Quality Control Act or to

enforce any regulation of the board outside the city, the board and the

county shall be represented by the distrIct attorney.

O. In addition to the remedIes provIded above, the trIal court

may, as provided In the AIr Quality Control Act, Impose c1vll penalties

not exceeding one thousand ($1,000) dollars for each violatIon of the Air

Quality Control Act or any regulation or emergency order. Each day durIng

any portion of which such vIolation occurs shall constitute a separate

offense. In any actIon under this subsection, the defendant may demand a

Jury tria I.

E. Any party aggrieved by any fInal Judgement of the distrIct

court under this section may appeal to the court of appeals as In other

cI vll actions.

F. NotWIthstanding the enforcement provIsIons of the Air

QuaIl ty Control Act of the State of New Hexlco and Section 11 D of thl s

Drdlnance, any person who VIolates any of the provisIons of this Joint AIr

Quality Control Board Drdlnance, or any of the AIr QualIty Control

Regulations adopted In accordance with thIs ordinance shall be deemed

guilty of a misdemeanor and upon conviction thereof, shall be punished by

a fine not exceeding three hundred dollars ($300) and/or ImprIsonment for

a period not to exceed ninety (90) days. Each day this Ordinance Is

violated shaJI be considered a separate offense.

Insofar as the Department Is the admInistrative agent In behalf

of the JoInt Air Auallty Control Board, the Department Is hereby

authorized to Issue citations for violations of this Ordinance pursuant to

this subsection on behalf of said Board.

SECTION 12. InspectIon.

Any employee of the department or board, upon presentatIon of proper

department or board credentials:

16
A. shall have at reasonable times, a right of entry to, upon or

through any premises 1n whIch an em1sslon source 15 located or In which

are located any records required to be maIntained by regulattons of the

board;

B. may at reasonable times have access to and copy any records

required to be established and maIntaIned by regulatIons of the board; and

C. Inspect any monitorIng eqUipment or methods requIred to be

Installed by regulation of the board.

SECTION 13. Additional means of enforcement.

As an additIonal means of enforcing the AIr Quality Control Act, this

Ordinance, any regulatIon of the board, or any permIt conditIon, the board

may accept a written assurance of discontinuance of any act or practice

deemed In violatIon of the Air Quality Control Act, this Ordinance, any

regulatIon adopted pursuant thereto, or any permit condition from any

person engagIng In, or who has engaged In such act or practIce, sIgned and

acknowledged, by the board, the department and the party affected. Any

such assurance shall specify a tIme lImIt durIng which such discontInuance

ls to be accomplished. So long as the party affected complies with the

provisIons of the assurance of dIscontInuance, It shall not be subject to

the ImpositIon of any fines or penalties by the board or the department

for the specifIc act or practice covered by the assurance of

dIscontInuance.

SECTION 14. Declaratory judgement on regulatIons.

In addition to any other remedy available, the validity or

applicabIlity of a regulatIon of the board may be determined In an action

for a declaratory judgement In accordance with the Air Quality Control Act.

SECTION 15. Notice.

Upon request, copIes of the results of InvestigatIons shall be

furnished to the County CommIssion or Mayor as approprIate, when

enforcement action Is contemplated.

Before enforcement proceedings are cOOII'Iended to the d1strlct court,

advance written notIce thereof will be given to the County CommIssion or

Hayor, as appropriate.

17·
Hrltten notIce of hearings on the adoptIon of regulations or

emission control requlrements or amendment or repeal thereof wl11 be gIven

to the Hayor and County CommIssion.

SECTION 16. SeverabIlity.

If any part or application of this OrdInance Is held InvalId, the

remaInder or Its applIcation to other situatIons or persons shall not be

affected.

SECTION 17. Repeal of Previous Ordinances

OrdInances Number 84-44 and 87-10 are hereby repealed and replaced by

this OrdInance.

18
PASSED AND ADOPTED ON DECEMBER 27,

1988.

THE SOARD Of COUNTY COMMISSIONERS Of

THE COUNTY Of 8ERNALILLO. NEN MEXICO

Lento Halry. Cha1rman

Orlando VIgIl, VIce-ChaIrman

~~~ Schaefer, Member

ATTEST:

Ld;nl bv ,M.w ~}

Gladys DavIs, County Cler~

_ OrdInance shall become effective on the -fl!.l;!L day

of J"arJ.UiltY, 1989

19