State of New Mexico 

Bill Richardson 

Governor 

May 24,2006 

Mr. Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency, Region VI 

1445 Ross Avenue, Suite 1200 

Dallas, TX 75202-2733 

SUBJECT: Request for approval of revision to the State Implementation Plan for air quality 

Dear Mr. Greene, 

As provided by 40 CFR Part 51, Appendix V, I an1 writing to request approval of the attached 

documentation, which will serve as the basis for a revision to the State Implementation Plan (SF) for 

New Mexico. Specifically, I am transmitting the locally-adopted amendments to 20.1 1.102 NMAC, 

Oxygenated Fuels, which apply to Bernalillo County, New Mexico. 

The Albuquerque-Bernalillo County Pur Quality Control Board (AQCB) adopted the amended regulation 

20.11.102 NMAC, Oxygenated Fuels, on November 9, 2005, after a public review period and 

corresponding public hearing held on October 12, 2005. The regulation Oxygenated Fuels was filed at 

the New Mexico State Records Center on November 10, 2005, and became effective on December 11, 

2005. We believe that the submitted materials proklde adequate documentation to support the requested 

SIP revision. 

To facilitate your review and processing, the following materiais are enclosed: 

1) SIP Complcteness Checklist pursuant to 40 CFR 5 1, Appendix V 

2) Hearing record, including transcript and exhibits 

3) Comments received, if any 

4) The final AQCB-approved regulation, Oxygenated Fuels, proposed for incorporation into 

the SIP 

5) Other supporting documentation 

State Capitol Room 400 Santa Fe, New Mexico 87501 505-476-2200 wwwgoverJ3or.state.nm.m 

-- -- ---- ---- - 
Mr. Richard E. Greene 

March 30,2006 

Page 2 

Your favorable consideration of this request is appreciated. If you have any questions, please contact 

Alfiedo Santistevan, Director of the Albuquerque Environmental Health Department (EHD), at (505) 768- 

2600. 

Sincerely, 

Bill Richardson 

Governor 

State of New Mexico 

cc: Alfred0 Santistevan, Director, Albuquerque Environmental Health Department 

Margaret Nieto, Control Strategies Supervisor, Albuquerque Air Quality Division 

Mary Uhl, Chief, Air Quality Bureau, NM Environment Department 

Enclosures 
CITY OF ALBUqUERQUE 

Environmental Health Department 

ALBUQUERQUE 

7q'ak;j 96C.s7bJ 

Martin J. Chavez, Mayor 

March 29,2006 

The Honorable Bill Richardson 

Governor 

State of New Mexico 

Governor's Office 

Capitol Building, 4fh Floor 

Santa Fe, NM 87503 

Subject: Request to submit to the Environmental Protection Agency (EPA) a 

proposed revision to the State Implementation Plan (SIP) for air quality, 

P.O. Box 1293 incorporating the revised 20.11.102 NMAC, Oxveenated Fuels, and 

requesting EPA approval 

Albuquerque Dear Governor Richardson, 

I am writing to request your assistance in submitting the attached documentation 

New Mexico 87103 to the Environmental Protection Agency (EPA) to serve as the basis for a revision 

to New Mexico's State Implementation Plan (SIP) for air quality as provided by 

40 CFR Part 51, Appendix V. Specifically, I am asking you to submit the 

attached documentation as a proposed SIP revision to incorporate the revised 

www.cabq.gov regulation 20.1 1.102 NMAC, Oxygenated Fuels, adopted pursuant to Title I of the 

Clean Air Act Amendments of 1990. If you agree to submission of the proposed 

SIP revision, the request should be forwarded to the EPA with a request for 

approval. 

The Albuquerque-Bernalillo County Air Quality Control Board (AQCB) adopted 

these revisions to their regulation on November 9, 2005, aRer a public comment 

period and corresponding public hearing held on October 12, 2005. The 

regulation was then filed with the New Mexico State Records Center on 

November 10, 2005, and became effective locally on December 1 1, 2005. We 

believe that the submitted materials provide adequate documentation to support 

the requested SIP revision. This SIP revision involves replacing the currently 

adopted version of 20.1 1.102 NMAC, Oxygenated Fuels, found in the SIP with 

the recently amended regulation approved by the AQCB. 
Governor Richardson 

March 29,2006 

Page 2 

To facilitate your review and processing, the following materials are enclosed: 

1) SIP Completeness Checklist pursuant to 40 CFR 5 1, Appendix V 

2) Hearing record, including transcript and exhibits 

3) Comments and responses 

4) The final AQCB-approved regulation, Oxygenated Fuels, proposed 

for incorporation into the SIP 

5) Other supporting documentation 

Your favorable consideration of this request is appreciated. If you have any 

questions, please contact Margaret Nieto of my staff at (505) 768-2637. 

- 

Alfred0 Santistevan 

Director 

Albuquerque Environmental Health Department 

cc: Chair, Albuquerque-Bernalillo County Air Quality Control Board 

Isreal Tavarez, Environmental Engineering Manager, Air Quality Division 

Margaret Nieto, Control Strategies Supervisor, Air Quality Division 

Enclosures 
REVISION TO THE NEW MEXICO STATE IMPLEMENTATION PLAN 

PERTAINING TO 20.11.102 NMAC, OXYGENATED FUELS 

April 2006 

SIP COMPLETENESS CHECKLIST 

for regular processing 

(per 40 CFR 5 1 Appendix V) 

2.1 Administrative Materials 

(a) A formal letter of submittal from the Governor or his designee, requesting EPA 

approval of the plan or revision thereof (hereafter "the plan"). 

- X-YES - NO NIA 

This package is being sent to EPA with a formal submittal letter from the 

Governor of the State of New Mexico. 

(b) Evidence that the State has adopted the plan in the State code or body of 

regulations; or issued the permit, order, consent agreement (hereafter "document") 

in final form. That evidence shall include the date of adoption or final issuance as 

well as the effective date of the plan, if different from the adoption/issuance date. 

- X-YES - NO NIA 

The amended regulation, 20.11.102 NMAC, Oxygenated Fuels, was 

adopted November 9, 2005 at the regular meeting of the Albuquerque-Bernalillo 

County Air Quality Control Board (AQCB), following a public hearing held on 

October 12, 2005. The regulation was filed with the New Mexico State Records 

Center on November 10, 2005 and became effective on December 11, 2005. The 

first page of Attachment A is a transmittal of the regulation to the State Records 

Center signed by AQCB Chair Sue Umshler. The date stamp at the top of the 

page indicates the filing date. 

(c) Evidence that the State has the necessary legal authority under State law to adopt 

and implement the plan. 

- X-YES - NO NIA 

The NM Air Quality Control Act provides for authority to adopt 

regulations, and adopt and revise plans under Section 74-2-5. See Attachment B. 

Page 1 of 5 

m-- - - 
(d) A copy of the actual regulation, or document submitted for approval and 

incorporation by reference into the plan, including indication of the changes made 

to the existing approved plan, where applicable. The submittal shall be a copy of 

the official State regulatioddocument signed, stamped, dated by the appropriate 

State official indicating that it is fully enforceable by the State. The effective date 

of the regulatioddocument shall, whenever possible, be indicated in the document 

itself. 

-- X YES NO N/ A 

Attachment C contains a copy of the regulation as amended and filed at 

the State Records Center on November 10, 2005, with an effective date of 

December 11, 2005. The amendments were published in the New Mexico Register 

on November 30, 2005 (Volume XYI, Number 22). See Attachment D. 

(e) Evidence that the State followed all of the procedural requirements of the State's 

laws and constitution in conducting and completing the adoptiodissuance of the 

plan. 

- X - YES - NO N/A 

See Hearing Exhibits #3 & #4 in Attachment E. These provide evidence 

that notices were published in the local newspaper and the NM Register. The NM 

Air Quality Control Act 74-2-6C requires a 30-day public notice. However, it is 

an Albuquerque-Bernalillo County Air Quality Control Board (AQCB) policy to 

provide a 45-day public notice period, which was provided in this case. 

(f) Evidence that public notice was given of the proposed change consistent with 

procedures approved by EPA; including the date of publication of such notice. 

- X-YES - NO N/A 

See Hearing Exhibits #3 & #4 in Attachment E. These provide evidence 

that notices were published in the local newspaper and the NM Register. In 

addition, notice was also provided in the form of an e-mail to the air quality list 

serve and a mailed notice when appropriate. The NM Air Quality Control Act 74- 

2-6C requires a 30-day public notice. However, it is an AQCB policy to provide 

a 45-day public notice period, which was provided in this case. 

(g) Certification that public hearing(s) was held in accordance with the information 

provided in the public notice and the State's laws and constitution, if applicable. 

- X-YES 

See transcriber's certzfication at the end of the hearing record transcript 

in Attachment F. 

Page 2 of 5 
(h) Compilation of public comments and the State's response thereto. 

- X - YES - NO NIA 

See Exhibit #5 & #7 in Attachment E. Staff received no comments from 

the public, only from EPA. EPA 's comments were positive and required no 

additional floor amendments to the Public Review Draft. 

2.2 Technical Support 

(a) Identification of all regulated pollutants affected by the plan. 

- X - YES - NO NIA 

The regulation 20.11.102 NMAC, Oxygenated Fuels, provides for the use 

of oxygenated fuels in Bernalillo County to reduce tailpipe emissions from motor 

vehicles. The regulation also establishes a contingency measure, as included in 

the Limited Maintenance Plan (LMP) for Carbon Monoxide: Albuquerque/ 

Bernalillo Countv, that the oxygenate content in gasoline will increase from 2.7% 

to 3.0% in the event that monitored carbon monoxide (CO) levels in Bernalillo 

County exceed 85% of the federal CO standards. 

@) Identification of the locations of affected sources including the EPA attainment1 

nonattainment designation of the locations and the status of the attainment plan 

for the affected area(s). 

- X - YES - NO NIA 

The regulation 20.11.102 NMA C, Oxvgenated Fuels, sets forth the 

Oxyfuels Program for Bernalillo County, New Mexico. The program applies to 

fuel suppliers and vehicles users in Bernalillo County during the winter CO 

season (November through February). During the CO season, the oxygenate 

content in gasoline must contain a minimum of 2.7% oxygen content by weight. 

Bernalillo County is currently designated as an attainment area for CO 

under a Limited Maintenance Plan (LMP). This designation was published in the 

Federal Register on July 21, 2005. (See Federal Register notice in Attachment 

G). 

The Oxygenated Fuels Program is a control strategy contained in the 

LMP for 2006-2016. The contingency measure in the LMP is to increase the 

oxygenate content in gasoline from 2.7% to 3.0% in the event that monitored CO 

levels in Bernalillo County exceed 85% of the federal CO standard. The 

regulation 20.1 1.102 NMAC,Oxynenated has sewed to reduce CO levels 

in the airshed and will not negatively affect the maintenance status of Bernalillo 

County. 

Page 3 of 5 

-- ---- - --" --.-- -- 
(c) Quantification of the changes in plan-allowable emissions from the affected 

sources; estimates of changes in current actual emissions from affected sources or, 

where appropriate, quantification of changes in actual emissions from affected 

sources through calculations of the differences between certain baseline levels and 

allowable emissions anticipated as a result of the revision. 

- X-YES NO lV/A 

The CO baseline level of 538.32 tons per da-v (tpd) was contained in the 

last maintenance plan and was superceded when the SIP revision for the second 

halfof the maintenance plan (LMP) was approved by EPA on July 21, 2005. 

The Oxygenated Fuels Program was designed to reduce CO levels during 

the first maintenance planning period (1996-2006) and will continue during the 

second maintenance planning period (2006-201 6). The oxygenate content in fuel 

will be the same during both. Although the Oxygenated Fuels Program operates 

during both periods, the baseline level only applied to the first. During the 

second planning period, under the La 

Monoxide: Albuquerque/Bernalillo County, there is no maximum amount ofplanallowable emissions because a LMP contains no upper emissions limit. 

(d) The State's demonstration that the national ambient air quality standards, 

prevention of significant deterioration (PSD) increments, reasonable further 

progress demonstration, and visibility, as applicable, are protected if the plan is 

approved and implemented. For all requests to redesignate an area to attainment 

for a national primary ambient air quality standard, under section 107 of the Act, a 

revision must be submitted to provide for the maintenance of the national primary 

ambient air quality standards for at least 10 years as required by section 175A of 

the Act. 

- X-YES NO N/A 

The Limited Maintenance Plan (LMP) for Carbon Monoxide: 

Albuquerque-Bernalillo County, New Mexico is valid only if CO levels remain 

below the National Ambient Air Quality Standard (NAAQS). Additionally, CO 

levels must remain below or equal to 85% of the NAAQS to be in compliance with 

the LMP. If CO levels in Albuquerque-Bernalillo County exceed the 85% 

threshold, a contingency measure to increase the oxygenate content in fuel from 

2.7% to 3.0% will deploy. 

(e) Modeling information required to support the proposed revision, including input 

data, output data, models used, justification of model selections, ambient 

monitoring data used, meteorological data used, justification for use of offsite 

data (where used), modes of models used, assumptions, and other information 

relevant to the determination of adequacy of the modeling analysis. 

- YES - NO - X - N/A 

Page 4 of 5 
(f) Evidence, where necessary, that emission limitations are based on continuous 

emission reduction technology. 

YES - NO - X - N/A 

(g) Evidence that the plan contains emission limitations, work practice standards and 

record keepinglreporting requirements, where necessary, to ensure emission 

levels. 

- X- YES NO N/A 

The regulation 20.11.102 NMAC, Oxynenated contains work 

practice standards to ensure emission levels. Subsection C of 20.11.102 NMAC 

states that the department shall develop sampling fvequency and testing criteria 

for gasoline. During the ox.vfuel season, the department collects gasoline samples 

at several facilities and tests the samples for compliance with the 2.7% oxygenate 

requirement. 

The regulation Oxwenated Fuels also contains record keepingheporting 

requirements. Subsection I of 20.11.102.12 states that, by July of each year, the 

department shall provide a report to the AQCB. The report shall review results of 

the Oxygenated Fuels program from the previous year. 

(h) Compliance/enforcement strategies, including how compliance will be determined 

in practice. 

Compliance/enforcement strategies are found in the Oxvaenated Fuels 

regulation. Subsection G of 20.11.102.12 NMA C states that the department shall 

develop sampling frequency and testing criteria for gasoline to determine 

compliance with the regulation. During the oxyfuel season, the department 

collects gasoline samples at several facilities and tests the samples for 

compliance with the 2.7% oxygenate requirement. 

(i) Special economic and technical justification required by any applicable EPA 

policies, or an explanation of why such justifications are not necessary. 

- YES - NO - X N/A - 

Page 5 of 5 

-- 4- - - - -- - - -- - - . *--- 
ATTACHMENT A 

NMAC Transmittal Sheet 
LL3.2 7-'1 1iGy j n ;:ti 11 ; 2 

NMAC TRANSMITAL FORM 

1.24.10 NMAC [Sequence # 1 

1 Albuaueraue-Bernalillo County Air Quality Control Board 

I C/O Environmental Health Department, Air Quality Division I 

P.O. Box 1293, One Civic Plaza NW 

Albuquerque, NM 87103 

New n Amendment Renumber 0 Repeal 0 . Emergency 

Title Chapter 

20 11 I102 

Please list attachmen& 

and Internet site(s1 if 

Ye. 0 Public domain 0 

Control Board ordinance, ~ernalillo County Ordinance 94-5 Section 4; and the Joint Air Quality 

Control Board Ordinance, Revised Ordinances of Albuquerque 1994 Section 9-5-1-4. 

I Name: Ms. Sue Umshler, Esq. Check if delegated 

authoritv rid I 

Title: Board Chair 

- 

11/9/05 

Signature Datesigned 
ATTACHMENT B 

NM Air Quality Control Act 
ARTICLE 2 

Air Pollution 

Section 

74-2-1 Short title. 

74-2-2 Definitions. 

74-2-3 Environmental improvement board. 

74-2-4 Local authority. 

74-2-5 Duties and powers; environmental improvement board; local board. 

74-2-5.1 Duties and powers of the department and the local agency. 

74-2-5.2 State air pollution control agency; specific duties and powers of the 

department. 

74-2-6 Adoption of regulations; notice and hearings. 

74-2-7 Permits; permit appeals to the environmental improvement board or the local 

board; permit fees. 

74-2-7.1 Local governing body authority; construction permits; electric generation 

facilities. 

74-2-8 Variances. 

74-2-9 Judicial review; administrative actions. 

74-2-10 Emergency powers of the secretary and the director. 

74-2-11 Confidential information. 

74-2-11.1 Limitations on regulations. 

74-2-12 Enforcement; compliance orders; field citations. 

74-2-12.1 Civil penalty; representation of department or local authority; limitation of 

actions. 

74-2-13 Inspection. 

74-2-14 Criminal penalties. 

74-2-15 State air quality permit fund. 

74-2-15.1 Repealed. 

74-2-16 Municipal or county air quality permit fund. 

74-2-17 Continuing effect of existing laws, rules and regulations. 

74-2-18 to 74-2-22 Repealed. 

74-2-1. Short title. (1989) 

Chapter 74, Article 2 NMSA 1978 may be cited as the "Air Quality Control Act". 

 History: 1953 Comp., § 12-14-1, enacted by Laws 1967, ch. 277, § 1; 1972, ch. 51, § 1; 

1989, ch. 278, § 1. 

Cross references. — For the Environmental Improvement Act, see Chapter 74, Article 1 

NMSA 1978. 

For the Pollution Control Revenue Bond Act, see 3-59-1 to 3-59-14 NMSA 1978. 

ANNOTATION 

Comparison to Federal Clean Air Act. — New Mexico's Air Quality Control Act is not 

generally more stringent than the Federal Clean Air Act except in areas of air pollution 

prevention not preempted by the Federal Clean Air Act and not precluded by the limiting 

provisions in the Air Quality Control Act. 1987 Op. Att'y Gen. No. 87-11. 

Application of state antipollution laws to industries located on Indian land is valid, 

provided that the operation of those laws neither impairs the proprietary interest of the 
Indian people in their lands nor limits the right of the tribe or pueblo to govern matters of 

tribal relations. The regulation of industrial discharges is not a matter fundamental to 

tribal relations, and the state supervision of environmental pollution will not limit, in any 

meaningful manner, the right of the several Indian peoples to govern themselves. The 

extension of pollution controls to industries located on Indian land will not affect the 

ownership or control of the land. 1970 Op. Att'y Gen. No. 70-5. 

Law reviews. — For comment, "Delegation of Legislative Authority on the State Level; 

Environmental Protection in New Mexico: Public Service Co. of New Mexico et al. v. 

New Mexico Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977). 

For note, "The 1977 Procedural Amendments to the Clean Air Act - Have They Made a 

Difference?," see 24 Nat. Resources J. 745 (1984). 

For note, "Judicial Review of Environmental Protection Agency Rule Promulgation - 

Clean Air Act State Implementation Plan Requirement - New Mexico EID v. Thomas, 

789 F.2d 825 (10th Cir. 1986)," see 27 Nat. Resources J. 723 (1987). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 155 

et seq. 

Validity of regulation of smoke and other air pollution, 78 A.L.R.2d 1305. 

Liability insurance coverage for violations of antipollution laws, 87 A.L.R.4th 444. 

Control of interstate pollution under Clean Air Act as amended in 1977 (42 USCS §§ 

7401 - 7626), 82 A.L.R. Fed. 316. 

Application of air quality modeling to decisionmaking under Clean Air Act (42 USCS §§ 

7401 - 7426), 84 A.L.R. Fed. 710. 

Standing of air pollution source to challenge Clean Air Act (42 USCS §§ 7401-7626) or 

its implementation, 85 A.L.R. Fed. 515. 

Construction and application of § 307(b)(1) of Clean Air Act (42 USCS § 7607(b)(1)) 

pertaining to judicial review by courts of appeals, 86 A.L.R. Fed. 604. 

What constitutes modification of stationary source, under § 111 (a)(3), (4) of Clean Air 

Act (42 USCS § 7411 (a)(3), (4)), so as to subject source to Environmental Protection 

Agency's new source performance standards, 94 A.L.R. Fed. 750. 

Award of costs and attorney's fees in judicial review of administrative proceedings under 

§ 307(f) of Clean Air Act (42 USCA § 7607(f)), 146 A.L.R. Fed. 531. 

Federal requirements for public participation in adoption, submission, and approval of 

state implementation plans and revisions pursuant to § 110 of Clean Air Act (42 USCA § 

7410), 151 A.L.R. Fed. 445. 

Decisions of Environmental Protection Agency (EPA) approving or disapproving state 

implementation plans as interfering with primary role of states to determine how national 

ambient air quality standards should be met under Clean Air Act (42 USCA §§ 7401 et 

seq.), 151 A.L.R. Fed. 495. 

Conformity requirements of § 176(c) of Clean Air Act, 42 U.S.C.A. § 7506(c), 157 

A.L.R. Fed. 217. 

39A C.J.S. Health and Environment § 130. 

74-2-2. Definitions. (2001) 

As used in the Air Quality Control Act [74-2-1 NMSA 1978]: 
A. "air contaminant" means a substance, including any particulate matter, fly ash, 

dust, fumes, gas, mist, smoke, vapor, micro-organisms, radioactive material, any 

combination thereof or any decay or reaction product thereof; 

B. "air pollution" means the emission, except emission that occurs in nature, into the 

outdoor atmosphere of one or more air contaminants in quantities and of a duration that 

may with reasonable probability injure human health or animal or plant life or as may 

unreasonably interfere with the public welfare, visibility or the reasonable use of 

property; 

C. "department" means the department of environment; 

D. "director" means the administrative head of a local agency; 

E. "emission limitation" or "emission standard" means a requirement established by 

the environmental improvement board or the local board, the department, the local 

authority or the local agency or pursuant to the federal act that 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 reduction; 

F. "federal act" means the federal Clean Air Act, its subsequent amendments and 

successor provisions; 

G. "federal standard of performance" means a standard of performance, emission 

limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412; 

H. "hazardous air pollutant" means an air contaminant that has been listed as a 

hazardous air pollutant pursuant to the federal act; 

I. "local agency" means the administrative agency established by a local authority 

pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978; 

J. "local authority" means any of the following political subdivisions of the state that 

have, by following the procedure set forth in Subsection A of Section 74-2-4 NMSA 

1978, assumed jurisdiction for local administration and enforcement of the Air Quality 

Control Act [74-2-1 NMSA 1978]: 

(1) a county that was a class A county as of January 1, 1980; or 

(2) a municipality with a population greater than one hundred thousand located 

within a county that was a class A county as of January 1, 1980; 

K. "local board" means a municipal, county or joint air quality control board created 

by a local authority; 

L. "mandatory class I area" means any of the following areas in this state that were 

in existence on August 7, 1977: 

(1) national wilderness areas that exceed five thousand acres in size; and 

(2) national parks that exceed six thousand acres in size; 

M. "modification" means a physical change in, or change in the method of operation 

of, a source that results in an increase in the potential emission rate of a regulated air 

contaminant emitted by the source or that results in the emission of a regulated air 

contaminant not previously emitted, but does not include: 

(1) a change in ownership of the source; 

(2) routine maintenance, repair or replacement; 

(3) installation of air pollution control equipment, and all related process equipment 

and materials necessary for its operation, undertaken for the purpose of complying with 
regulations adopted by the environmental improvement board or the local board or 

pursuant to the federal act; or 

(4) unless previously limited by enforceable permit conditions: 

(a) an increase in the production rate, if such increase 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 

was capable of accommodating such fuel or raw material or if use of an alternate fuel or 

raw material is caused by a natural gas curtailment or emergency allocation or an other 

lack of supply of natural gas; 

N. "nonattainment area" means for an air contaminant an area that is designated 

"nonattainment" with respect to that contaminant within the meaning of Section 107(d) of 

the federal act; 

O. "person" includes an individual, partnership, corporation, association, the state or 

political subdivision of the state and any agency, department or instrumentality of the 

United States and any of their officers, agents or employees; 

P. "potential emission rate" means the emission rate of a source at its maximum 

capacity to emit a regulated air contaminant under its physical and operational design, 

provided any physical or operational limitation on the capacity of the source to emit a 

regulated air contaminant, including air pollution control equipment and restrictions on 

hours of operation or on the type or amount of material combusted, stored or processed, 

shall be treated as part of its physical and operational design only if the limitation or the 

effect it would have on emissions is enforceable by the department or the local agency 

pursuant to the Air Quality Control Act [74-2-1 NMSA 1978] or the federal act; 

Q. "regulated air contaminant" means an air contaminant, the emission or ambient 

concentration of which is regulated pursuant to the Air Quality Control Act or the federal 

act; 

R. "secretary" means the secretary of environment; 

S. "significant deterioration" means an increase in the ambient concentrations of an 

air contaminant above the levels allowed by the federal act or federal regulations for that 

air contaminant in the area within which the increase occurs; 

T. "source" means a structure, building, equipment, facility, installation or operation 

that emits or may emit an air contaminant; 

U. "standard of performance" means a requirement of continuous emission reduction, 

including any requirement relating to operation or maintenance of a source to assure 

continuous emission reduction; 

V. "state implementation plan" means a plan submitted by New Mexico to the 

federal environmental protection agency pursuant to 42 U.S.C. Section 7410; and 

W. "toxic air pollutant" means an air contaminant, except a hazardous air pollutant, 

classified by the environmental improvement board or the local board as a toxic air 

pollutant. 

 History: 1953 Comp., § 12-14-2, enacted by Laws 1967, ch. 277, § 2; 1970, ch. 58, § 1; 

1971, ch. 277, § 20; 1972, ch. 51, § 2; 1973, ch. 322, § 1; 1977, ch. 253, § 36; 1979, ch. 

393, § 1; 1981, ch. 373, § 1; 1983, ch. 34, § 1; 1989, ch. 278, § 2; 1992, ch. 20, § 1; 2001, 

ch. 133, § 1. 

Cross references. — For the definition of "class A county," see 4-44-1 NMSA 1978. 
The 1992 amendment, effective March 5, 1992, deleted former Subsections C and D, 

defining "board" and "delayed compliance order"; rewrote former Subsection E and 

redesignated it as present Subsection C; redesignated former Subsection F as present 

Subsection D, while substituting therein "a local agency" for "the department"; 

redesignated former Subsection G as present Subsection E, while inserting therein 

"environmental improvement board or the local" and "the local authority or the local 

agency"; deleted former Subsection H, defining "environmental improvement division"; 

rewrote former Subsection I and redesignated it as present Subsection F; redesignated 

former Subsections J and K as present Subsections G and H; added present Subsections I, 

J and K; inserted "environmental improvement board or the local" in Subsection M(3); 

rewrote Subsection N; added present Subsection R; redesignated former Subsections R 

through U as present Subsections S through V; added Subsection W; and made minor 

stylistic changes throughout the section. 

The 2001 amendment, effective June 15, 2001, substituted "listed" for "classified" in 

Subsection H; and rewrote Subsection P, which formerly read " 'potential emission rate' 

means the emission rate of a source at its maximum capacity in the absence of air 

pollution control equipment that is not vital to production of the normal product of the 

source or to its normal operation;". 

Clean Air Act. — The federal Clean Air Act, referred to in this section, appears as 42 

U.S.C. § 7401 et seq. Section 107 of that act, referred to in Subsection N, appears as 42 

U.S.C. § 7407. 

ANNOTATION 

Board may not expand definition of "air pollution" from "reasonable probability" of 

injury to health to a mere showing that condition "tends to cause harm." Duke City 

Lumber Co. v. New Mexico Envtl. Imp. Bd., 101 N.M. 291, 681 P.2d 717 (1984). 

Air Quality Standards' margin of safety does not contemplate excursions beyond legal 

limits. — Petitioner's argument that Congress, by allowing an adequate margin of safety, 

not only contemplated but countenanced occasional excursions beyond the limits of the 

National Ambient Air Quality Standards is meritless since it is clear that the margin of 

safety protects against effects which have not yet been uncovered by research or whose 

medical significance is a matter of disagreement. Duke City Lumber Co. v. New Mexico 

Envtl. Imp. Bd., 102 N.M. 8, 690 P.2d 451 (Ct. App. 1984). 

Board may rely on division's modeling results to deny variance application. — The 

environmental improvement board may rely on the environmental improvement 

division's modeling results, showing particulate concentrations in excess of the legal 

limit, in arriving at its decision to deny a lumber company's application for a variance 

from air quality control regulations. Duke City Lumber Co. v. New Mexico Envtl. Imp. 

Bd., 102 N.M. 8, 690 P.2d 451 (Ct. App. 1984). 

Public nuisance laws deemed alternative means of enforcement. — Where air quality 

standards or regulations have not been established as to what constitutes "air pollution" 

and thus no violation of this article or regulations and standards is apparent, New 

Mexico's public nuisance law may provide an alternative means for the environmental 

improvement division to abate noxious odors. 1978 Op. Att'y Gen. No. 78-12. 

Law reviews. — For comment, "Delegation of Legislative Authority on the State Level; 

Environmental Protection in New Mexico: Public Service Co. of New Mexico et al. v. 

New Mexico Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977). 
For article, "Substantial Evidence Reconsidered: The Post-Duke City Difficulties and 

Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988). 

74-2-3. Environmental improvement board. (1992) 

A. In taking any action under the Air Quality Control Act [Chapter 74, Article 2 

NMSA 1978], a majority of the environmental improvement board constitutes a quorum, 

but any action, order or decision of the environmental improvement board requires the 

concurrence of three members present at a meeting. 

B. Except as provided in the Air Quality Control Act, the jurisdiction of the 

environmental improvement board extends to all areas of the state except within the 

boundaries of a local authority. 

 History: 1953 Comp., § 12-14-3, enacted by Laws 1967, ch. 277, § 3; 1970, ch. 58, § 2; 

1971, ch. 277, § 21; 1973, ch. 322, § 2; 1992, ch. 20, § 2. 

Cross references. — As to definition of "board," "department" and "director," see 74-2-2 

NMSA 1978. 

As to definition of "A class county," see 4-44-1 NMSA 1978. 

As to exemption of environmental improvement board from authority of secretary of 

environment, see 9-7A-12 NMSA 1978. 

The 1992 amendment, effective March 5, 1992, substituted the present section catchline 

for "State air pollution control agency"; deleted the former first sentence of Subsection A, 

defining the environmental improvement board; rewrote the former second paragraph of 

Subsection A and designated it as present Subsection B; and deleted former Subsection 

B, relating to duties of the director of the department. 

ANNOTATION 

Air pollution controlled by subjecting entire state to regulatory authority. — Under this 

article, air pollution throughout the state is controlled by subjecting every area of the state 

to the regulatory authority of some board: either the environmental improvement board or 

a board created in accordance with 74-2-4 NMSA 1978. 1982 Op. Att'y Gen. No. 82-7. 

Responsibility for enforcing act. — Enforcement of New Mexico regulations and 

standards more stringent than, or in addition to, the federal standards and regulations is 

the state's responsibility; the environmental improvement board has state-wide 

responsibility for enforcing this article, but the Albuquerque-Bernalillo county air quality 

control board has this responsibility in the Albuquerque-Bernalillo county area. 1987 Op. 

Att'y Gen. No. 87-11. 

Requiring use of oxygenated fuels. — The environmental improvement board and/or the 

Albuquerque-Bernalillo county air quality control board may require the use of 

oxygenated fuels without violating the constitutional prohibition against interference with 

interstate commerce, but may only do so if that requirement is contained in the state's 

implementation plan. 1987 Op. Att'y Gen. No. 87-11. 

Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," 

see 4 N.M.L. Rev. 105 (1973). 

For comment, "Delegation of Legislative Authority on the State Level; Environmental 

Protection in New Mexico: Public Service Co. of New Mexico et al. v. New Mexico 

Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 

et seq. 
Orders or penalties against state or its officials for failure to comply with regulations 

directing state to regulate pollution-creating activities of private parties, under § 113 of 

Clean Air Act (42 U.S.C.S. § 1857c-8), 31 A.L.R. Fed. 79. 

39A C.J.S. Health and Environment § 130. 

74-2-4. Local authority. (1995) 

A. A county or municipality meeting the qualifications set forth in Paragraph (1) or 

(2) of Subsection J of Section 74-2-2 NMSA 1978 may assume jurisdiction as a local 

authority by adopting an ordinance providing for the local administration and 

enforcement of the Air Quality Control Act [Chapter 74, Article 2 NMSA 1978]. The 

ordinance shall: 

(1) create a local board to perform, within the boundaries of the local authority, those 

functions delegated to the environmental improvement board under the Air Quality 

Control Act, except any functions reserved exclusively for the environmental 

improvement board; 

(2) create a local agency to administer and enforce the provisions of the Air Quality 

Control Act within the boundaries of the local authority that shall, within the boundaries 

of the local authority, perform all of the duties required of the department and exert all of 

the powers granted to the department, except for those duties and powers reserved 

exclusively for the department; and 

(3) provide for the appointment of a director who shall perform for the local authority 

the same duties as required of the secretary under the Air Quality Control Act, except the 

duties and powers reserved exclusively for the secretary. 

B. At least a majority of the members of a local board shall be individuals who 

represent the public interest and do not derive any significant portion of their income 

from persons subject to or who appear before the local board on issues related to the 

federal act or the Air Quality Control Act. 

C. Prior to adopting any ordinance regulating air pollution, public hearings and 

consultations shall be held as directed by the local authority adopting the ordinance. The 

provisions of any ordinance shall be consistent with the substantive provisions of the Air 

Quality Control Act and shall provide for standards and regulations not lower than those 

required by regulations adopted by the environmental improvement board. 

D. Notwithstanding the provisions of Subsection A of this section, the environmental 

improvement board and the secretary shall retain jurisdiction and control for the 

administration and enforcement of the Air Quality Control Act as determined in that act 

with respect to any act or failure to act, governmental or proprietary, of any local 

authority that causes or contributes to air pollution, including proceeding against a local 

authority as provided in Section 74-2-12 NMSA 1978. "Failure to act", as used in this 

section, includes failure to act against any person violating the applicable ordinance or 

regulation adopted pursuant thereto. 

E. Any local authority that is located within a transportation-related pollutant 

nonattainment area or maintenance area may provide for a vehicle emission inspection 

and maintenance program for vehicles under twenty-six thousand pounds gross vehicle 

weight powered by a spark-ignited internal combustion engine, which program shall be 

no more stringent than that required under the federal act or under federal air quality 

standards. Any two or more local authorities may adopt identical rules and regulations 
necessary to implement the vehicle emission inspection and maintenance program, 

including examining the alternatives of public or private operation of the program. 

F. Any local authority that has implemented a vehicle emission inspection and 

maintenance program may extend the enforcement of that program by entering into joint 

powers agreements with any municipality or county within the designated airshed or with 

the department. 

G. No tax shall be imposed to fund any vehicle emission inspection and maintenance 

program until the local authority has submitted the question of imposition of a tax to the 

registered voters of the local authority and those registered voters have approved the 

imposition of the tax. 

H. A local authority having a vehicle emission inspection and maintenance program 

shall conduct the vehicle emission inspection and maintenance program through a 

decentralized privately owned and operated system unless air quality emissions result in 

automatic implementation of another type of program under the terms of a contingency 

plan required and approved by the United States environmental protection agency. The 

local authority shall set the emission inspection fee by ordinance. 

I. A local authority having a vehicle emission inspection and maintenance program 

is authorized to adopt rules, regulations and guidelines governing the establishment of 

private vehicle emission inspection and maintenance stations. No private vehicle 

emission inspection and maintenance station shall test vehicles unless the station 

possesses a valid permit issued by the local agency. Permit fees shall be determined by 

ordinance of the local authority and shall not exceed two hundred dollars ($200) per year 

per station. Additionally, a local authority may charge a permit fee of up to thirty-five 

dollars ($35.00) per year for each vehicle emissions mechanic and for each vehicle 

emissions inspector. The imposition of permit fees does not require a vote of the 

registered voters of the local authority. 

 History: 1953 Comp., § 12-14-4, enacted by Laws 1967, ch. 277, § 4; 1970, ch. 58, § 3; 

1971, ch. 277, § 22; 1973, ch. 322, § 3; 1981, ch. 373, § 2; 1985, ch. 95, § 1; 1988, ch. 

128, § 1; 1989, ch. 278, § 3; 1990, ch. 31, § 2; 1992, ch. 20, § 3; 1994, ch. 131, § 1; 1995, 

ch. 128, § 1. 

Cross references. — For definition of "class A county", see 4-44-1 NMSA 1978. 

The 1992 amendment, effective March 5, 1992, rewrote this section to the extent that a 

detailed comparison would be impracticable. 

The 1994 amendment, effective May 18, 1994, rewrote Subsection H, which read: "No 

vehicle emission inspection fee may be imposed by a local authority that exceeds two 

dollars ($2.00) for each vehicle subject to an emission inspection and maintenance 

program. The above fee limitation shall not limit any charges for vehicle inspections by a 

private vehicle emission inspection and maintenance station." 

The 1995 amendment, effective June 16, 1995, inserted "or maintenance area" in the first 

sentence in Subsection E, and deleted "contiguous" preceding "municipality" in 

Subsection F. 

Meaning of "federal act". — See Paragraph F of 74-2-2 NMSA 1978 and notes thereto. 

ANNOTATION 

Air pollution controlled by subjecting entire state to regulatory authority. — Under this 

article, air pollution throughout the state is controlled by subjecting every area of the state 
to the regulatory authority of some board: either the environmental improvement board or 

a board created in accordance with this section. 1982 Op. Att'y Gen. No. 82-7. 

Municipality not exempt from regulations adopted by county board. — Section 4-37-2 

NMSA 1978 does not exempt a municipality from regulations adopted by a county air 

quality control board which has the authority to adopt regulations to prevent or abate air 

pollution within the geographic boundaries of that county. 1982 Op. Att'y Gen. No. 82-7. 

Localities may impose criminal penalties for violations of act. — This article does not 

expressly deny to counties and municipalities the power to impose criminal penalties for 

violations of the act, thus such penalties are valid under N.M. Const., art. X, § 6. 

Chapman v. Luna, 101 N.M. 59, 678 P.2d 687 (1984), cert. denied, 474 U.S. 947, 106 S. 

Ct. 345, 88 L. Ed. 2d 292 (1985). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 

et seq. 

What are "land-use and transportation controls" which may be imposed, under § 

100(a)(2)(B) of Clean Air Act of 1970 (42 U.S.C.S. § 7405), to insure maintenance of 

national primary ambient air quality standards, 30 A.L.R. Fed. 156. 

Federal requirements for public participation in adoption, submission, and approval of 

state implementation plans and revisions pursuant to § 110 of Clean Air Act (42 USCA § 

7410), 151 A.L.R. Fed. 445. 

39A C.J.S. Health and Environment § 130. 

74-2-5. Duties and powers; environmental improvement board; local board. (1992) 

A. The environmental improvement board or the local board shall prevent or abate 

air pollution. 

B. The environmental improvement board or the local board shall: 

(1) adopt, promulgate, publish, amend and repeal regulations consistent with the Air 

Quality Control Act [Chapter 74, Article 2 NMSA 1978] to attain and maintain national 

ambient air quality standards and prevent or abate air pollution, including regulations 

prescribing air standards, within the geographic area of the environmental improvement 

board's jurisdiction or the local board's jurisdiction, or any part thereof; and 

(2) adopt a plan for the regulation, control, prevention or abatement of air pollution, 

recognizing the differences, needs, requirements and conditions within the geographic 

area of the environmental improvement board's jurisdiction or the local board's 

jurisdiction or any part thereof. 

C. Regulations adopted by the environmental improvement board or the local board 

may: 

(1) 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 nonattainment areas; provided that such regulations: 

(a) 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, 

pertaining to prevention of significant deterioration and pertaining to nonattainment 

areas; and 

(b) shall be applicable only to sources subject to such regulation pursuant to the 

federal act; 
(2) prescribe standards of performance for sources and emission standards for 

hazardous air pollutants that, except as provided in Paragraph (3) of this subsection: 

(a) shall be no more stringent than but at least as stringent as required by federal 

standards of performance; and 

(b) shall be applicable only to sources subject to such federal standards of 

performance; 

(3) include regulations governing emissions from solid waste incinerators that shall 

be at least as stringent as, and may be more stringent than, any applicable federal 

emission limitations; 

(4) require notice to the department or the local agency of the intent to introduce or 

permit the introduction of an air contaminant into the air within the geographical area of 

the environmental improvement board's jurisdiction or the local board's jurisdiction; and 

(5) require any person emitting any air contaminant to: 

(a) install, use and maintain emission monitoring devices; 

(b) sample emissions in accordance with methods and at locations and intervals as 

may be prescribed by the environmental improvement board or the local board; 

(c) establish and maintain records of the nature and amount of emissions; 

(d) submit reports regarding the nature and amounts of emissions and the 

performance of emission control devices; and 

(e) provide any other reasonable information relating to the emission of air 

contaminants. 

D. Any regulation adopted under this section shall be consistent with federal law, if 

any, relating to control of motor vehicle emission. 

E. In making its regulations, the environmental improvement board or the local 

board shall give weight it deems appropriate to all facts and circumstances, including but 

not limited to: 

(1) character and degree of injury to or interference with health, welfare, visibility 

and property; 

(2) the public interest, including the social and economic value of the sources and 

subjects of air contaminants; and 

(3) technical practicability and economic reasonableness of reducing or eliminating 

air contaminants from the sources involved and previous experience with equipment and 

methods available to control the air contaminants involved. 

 History: 1953 Comp., § 12-14-5, enacted by Laws 1967, ch. 277, § 5; 1970, ch. 58, § 4; 

1972, ch. 51, § 3; 1979, ch. 393, § 2; 1981, ch. 373, § 3; 1983, ch. 34, § 2; 1987, ch. 293, 

§ 1; 1990, ch. 99, § 66; 1992, ch. 20, § 4. 

Cross references. — For definitions of "board" and "federal act," see 74-2-2 NMSA 

1978. 

The 1992 amendment, effective March 5, 1992, substituted the present section catchline 

for "Duties and powers of board"; inserted "environmental improvement board" in 

Subsection A, rewrote the provisions of former Subsection B and redesignated them as 

present Subsections B, C, and D; and deleted former Subsections C, D, and E, relating to 

notice of intent to introduce air contaminants, compacts with other states, and installation 

of monitoring devices, samples, records, and reports respectively. 

Meaning of "federal act". — See Paragraph F of 74-2-2 NMSA 1978 and notes thereto. 

ANNOTATION 
Responsibility for enforcing act. — Enforcement of New Mexico regulations and 

standards more stringent than, or in addition to, the federal standards and regulations is 

the state's responsibility; the environmental improvement board has state-wide 

responsibility for enforcing this article, but the Albuquerque-Bernalillo county air quality 

control board has this responsibility in the Albuquerque-Bernalillo county area. 1987 Op. 

Att'y Gen. No. 87-11. 

Board's authority limited to pollution control. — Administrative bodies are the creatures 

of statutes, and as such they have no common-law or inherent powers and can act only as 

to those matters which are within the scope of the authority delegated to them. The 

legislative mandate under this article is that the board should prevent or abate air 

pollution, and although the authority granted to an administrative agency should be 

construed so as to permit the fullest accomplishment of the legislative intent or policy, 

such an approach to construction does not warrant allowing an administrative agency to 

amend or enlarge its authority under the guise of making rules and regulations. Public 

Serv. Co. v. New Mexico Envtl. Imp. Bd., 89 N.M. 223, 549 P.2d 638 (Ct. App. 1976). 

No authority to plan industrial development. — There is nothing in the board's mandate 

that gives it the authority to plan for the industrial development of any area in the state; 

although the standards and regulations promulgated by the board will have an impact on 

the industrial development of the area, such an impact should be as a consequence, not by 

design. Public Serv. Co. v. New Mexico Envtl. Imp. Bd., 89 N.M. 223, 549 P.2d 638 (Ct. 

App. 1976). 

No authority to require more restrictive standards than federal regulations. — There is no 

authority given to the board to promulgate regulations more restrictive than those under 

federal law in order for New Mexico to regain control over its air. Public Serv. Co. v. 

New Mexico Envtl. Imp. Bd., 89 N.M. 223, 549 P.2d 638 (Ct. App. 1976). 

Requiring use of oxygenated fuels. — The environmental improvement board and/or the 

Albuquerque-Bernalillo county air quality control board may require the use of 

oxygenated fuels without violating the constitutional prohibition against interference with 

interstate commerce, but may only do so if that requirement is contained in the state's 

implementation plan. 1987 Op. Att'y Gen. No. 87-11. 

Board's regulation following federal requirements not automatically illegal. — The 

board's adoption of a regulation which adheres to federal requirements does not create the 

automatic conclusion that it has ignored its obligations under state law. Kennecott Copper 

Corp. v. New Mexico Envtl. Imp. Bd., 94 N.M. 610, 614 P.2d 22 (Ct. App. 1980). 

Substantial evidence required to support regulations. — There is no substantial evidence 

in the record to support one of the board's final reasons for adopting amended regulations 

as to sulfur dioxide emissions, namely, because of their effects on visibility, since by 

definition sulfur dioxide in a gaseous form is a heavy colorless nonflammable gas of 

pungent suffocating odor, and whether sulfur dioxide emissions can or do combine with 

other elements in the atmosphere to produce a visible gas, or whatever, is not shown in 

the record. Public Serv. Co. v. New Mexico Envtl. Imp. Bd., 89 N.M. 223, 549 P.2d 638 

(Ct. App. 1976). 

But not required for every particular. — Regulations adopted by a board, pursuant to this 

section after substantial compliance with the public hearing requirements, need not be 

supported by substantial evidence in every material portion thereof. Wylie Bros. 
Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd., 80 N.M. 

633, 459 P.2d 159 (Ct. App. 1969). 

Board bound by its standard. — The board, in promulgating an ambient air quality 

standard, establishes the criterion for determining what concentration or quantity of sulfur 

dioxide in the specified time periods constitutes air pollution; it makes the judgment that 

concentrations over the quantity prescribed would injure health, interfere with visibility 

and adversely affect the public welfare. Having set the standard, it is bound by it, the 

same as anyone else. Public Serv. Co. v. New Mexico Envtl. Imp. Bd., 89 N.M. 223, 549 

P.2d 638 (Ct. App. 1976). 

Modification authorized to prevent pollution. — The board has the continuing authority 

to change the ambient air quality standard for sulfur dioxide after proper notice and 

hearing and to adopt regulations to implement or explain it, but it may not set a new 

standard or adopt regulations implementing or explaining it for any reason other than to 

prevent or abate air pollution. Public Serv. Co. v. New Mexico Envtl. Imp. Bd., 89 N.M. 

223, 549 P.2d 638 (Ct. App. 1976). 

Upon showing of present or future need for new standard. — New emission regulations 

may be adopted by the board if there is substantial evidence in the record of a present or 

reasonably anticipated future need for a stricter regulation in order to prevent air 

pollution in excess of the standard. Thus, if the board can demonstrate that reasonably 

anticipated future growth in the area will, as a factual matter, result in pollution emissions 

which exceed present ambient air standards, the board may enact stricter regulations for 

both existing and proposed sources. The board may act to prevent or abate air pollution 

when presented with persuasive evidence that emission sources are growing in number 

and that the totality of new and existing emissions will, if left at presently regulated rates, 

exceed the ambient air quality standard. 1977 Op. Att'y Gen. No. 77-15. 

Board obligated to amend standards to comply with federal requirements. — When New 

Mexico standards are amended and thus made more stringent in order to comply with 

federal requirements, the board is doing no more than it is obliged to do by its mandate 

under the federal Clean Air Act. Kennecott Copper Corp. v. New Mexico Envtl. Imp. 

Bd., 94 N.M. 610, 614 P.2d 22 (Ct. App. 1980). 

Law reviews. — For comment, "Delegation of Legislative Authority on the State Level; 

Environmental Protection in New Mexico: Public Service Co. of New Mexico et al. v. 

New Mexico Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 

et seq. 

Validity of regulation of smoke and other air pollution, 78 A.L.R.2d 1305. 

Air pollution control: validity of legislation permitting administrative agency to fix 

permissible standards of pollutant emission, 48 A.L.R.3d 326. 

Validity of state and local air pollution administrative rules, 74 A.L.R.4th 566. 

Construction and application of preemption sections (§§ 208, 210(c)(4)) of Clean Air Act 

(42 U.S.C.S. §§ 1857f-6a, 1857f-6c(c)(4)), 18 A.L.R. Fed. 971. 

What are "land-use and transportation controls" which may be imposed, under § 

100(a)(2)(B) of Clean Air Act of 1970 (42 U.S.C.S. § 1857c-5(a)(2)(B)), to insure 

maintenance of national primary ambient air quality standards, 30 A.L.R. Fed. 156. 
Construction, applicability and effect of § 304 of Clean Air Amendments of 1970 (42 

U.S.C.S. § 1857h-2) in actions against alleged violators, 37 A.L.R. Fed. 320, 85 A.L.R. 

Fed. 118. 

Clean Air Act implementation plans for nonattainment areas, 90 A.L.R. Fed. 481. 

Decisions of Environmental Protection Agency (EPA) approving or disapproving state 

implementation plans as interfering with primary role of states to determine how national 

ambient air quality standards should be met under Clean Air Act (42 USCA §§ 7401 et 

seq.), 151 A.L.R. Fed. 495. 

39A C.J.S. Health and Environment § 130. 

74-2-5.1. Duties and powers of the department and the local agency. (1992) 

The department and the local agency for their respective jurisdictions shall: 

A. develop facts and make investigations and studies consistent with the Air Quality 

Control Act [Chapter 74, Article 2 NMSA 1978] and, as required for enforcement of that 

act, enter at all reasonable times in or upon any private or public property, except private 

residences, that the department or the local agency has reasonable cause to believe is or 

will become a source contributing to air pollution and require the production of 

information relating to emissions that 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 shall be furnished to the owner or occupants of the premises 

before the action is filed; 

B. institute legal proceedings to compel compliance with the Air Quality Control Act 

or any regulation of the environmental improvement board or the local board; 

C. encourage and make every reasonable effort to obtain voluntary cooperation by 

the owner or occupants to preserve, restore or improve air purity; 

D. consult with any person proposing to construct, install or otherwise acquire an air 

contaminant source, device, system or control mechanism concerning the efficiency of 

the device, system or mechanism or the air pollution problem that may be related to the 

source, device, system or mechanism; provided that consultation shall not relieve any 

person from compliance with the Air Quality Control Act, regulations in force pursuant 

to that act or any other provision of law; 

E. establish a small business stationary source technical and environmental 

compliance assistance program, consistent with the provisions of Section 507 of the 

federal act; 

F. accept, receive and administer grants or other funds or gifts from public and 

private agencies, including the federal government, or from any person; 

G. classify and record air contaminant sources that, in its judgment, may cause or 

contribute to air pollution, according to levels and types of emissions and other 

characteristics that relate to air pollution; provided, classifications may be for application 

to the entire geographical area of the department's responsibility or the local authority's 

responsibility or to any designated portion of that area and shall be made with special 

reference to the effects on health, economic and social factors and physical effects on 

property; and 

H. develop and present to the environmental improvement board or the local board a 

plan for the regulation, control, prevention or abatement of air pollution, recognizing the 
differences, needs, requirements and conditions in the different portions of the 

geographical area of the department's responsibility or the local authority's responsibility. 

 History: 1978 Comp., § 74-2-5.1, enacted by Laws 1992, ch. 20, § 5. 

Repeals and reenactments. — Laws 1992, ch. 20, § 5 repeals former 74-2-5.1 NMSA 

1978, as enacted by Laws 1985, ch. 95, § 6, relating to joint air quality control board 

reports, and enacts the above section, effective March 5, 1992. For provisions of former 

section, see 1990 Replacement Pamphlet. 

"Section 507 of the federal act". — The phrase "section 507 of the federal act", referred 

to in Subsection E, means section 507 of the federal Clean Air Act, which appears as 42 

U.S.C. § 7661f. 

74-2-5.2. State air pollution control agency; specific duties and powers of the 

department. (1992) 

The department is the state air pollution control agency for all purposes under federal 

legislation relating to air pollution. The department shall: 

A. take all action necessary to secure for the state and its political subdivisions the 

benefits of federal legislation; 

B. advise, consult, contract with and cooperate with local authorities, other states, the 

federal government and other interested persons or groups in regard to matters of 

common interest in the field of air quality control and initiate cooperative action between 

a local authority and the department, between one local authority and another or among 

any combination of local authorities and the department for control of air pollution in 

areas having related air pollution problems that overlap the boundaries of political 

subdivisions; and 

C. enter into agreements and compacts with adjoining states and Indian tribes, where 

appropriate. 

 History: 1978 Comp., § 74-2-5.2, enacted by Laws 1992, ch. 20, § 6. 

Repeals and reenactments. — Laws 1992, ch. 20, § 6 repeals former 74-2-5.2 NMSA 

1978, as enacted by Laws 1990, ch. 99, § 67, relating to solid waste incinerator 

regulations, and enacts the above section, effective March 5, 1992. For provisions of 

former section, see 1990 Replacement Pamphlet. 

74-2-6. Adoption of regulations; notice and hearings. (1992) 

A. Any person may recommend or propose regulations to the environmental 

improvement board or the local board for adoption. The environmental improvement 

board or the local board shall determine whether to hold a hearing within sixty days of 

submission of a proposed regulation. 

B. No regulations or emission control requirement shall be adopted until after a 

public hearing by the environmental improvement board or the local board. As used in 

this section, "regulation" includes any amendment or repeal thereof. Hearings on 

regulations of nonstatewide application shall be held within that area that is substantially 

affected by the regulation. Hearings on regulations of statewide application may be held 

in Santa Fe or within any area of the state substantially affected by the regulation. 

C. Notice of the hearing shall be given at least thirty days prior to the hearing date 

and shall state the subject, the time and the place of the hearing and the manner in which 

interested persons may present their views. The notice shall also state where interested 
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 area affected. Reasonable 

effort shall be made to give notice to all persons who have made a written request to the 

environmental improvement board or the local board for advance notice of its hearings. 

D. At the hearing, the environmental improvement board or the local board shall 

allow all interested persons reasonable opportunity to submit data, views or arguments 

orally or in writing and to examine witnesses testifying at the hearing. Any person heard 

or represented at the hearing shall be given written notice of the action of the 

environmental improvement board or the local board. 

E. The environmental improvement board or the local board may designate a hearing 

officer to take evidence in the hearing. 

F. No regulations or emission control requirement adopted by the environmental 

improvement board or the local board shall become effective until thirty days after its 

filing under the State Rules Act [Chapter 14, Article 4 NMSA 1978]. 

 History: 1953 Comp., § 12-14-6, enacted by Laws 1967, ch. 277, § 6; 1970, ch. 58, § 5; 

1974, ch. 64, § 2; 1981, ch. 373, § 4; 1982, ch. 73, § 25; 1992, ch. 20, § 7. 

Cross references. — For definition of "board," see 74-2-2 NMSA 1978. 

As to notice by publication, see 14-11-1 NMSA 1978 et seq. 

The 1992 amendment, effective March 5, 1992, substituted "adoption" for 

"promulgation" in the first sentence of Subsection A, substituted "environmental 

improvement board or the local board" for "board" several times throughout the section, 

deleted former Subsection G relating to appeals, and made minor stylistic changes 

throughout the section. 

Temporary provisions. — Laws 1992, ch. 20, § 22, effective March 5, 1992, provides 

that all rules, regulations and administrative determinations of the environmental 

improvement board or a local board created by any local air quality authority and the 

department of environment or the administrative agency of a local air quality authority 

pertaining to air quality that existed prior to the effective date of the 1992 amendments to 

the Air Quality Control Act (March 5, 1992) set forth in that act shall remain in effect 

after that date until repealed or amended unless in conflict with, prohibited by or 

inconsistent with, the provisions of the Air Quality Control Act, as amended, and 

provides that all enforcement actions taken before or after the effective date of the 

amendments to the Air Quality Control Act (March 5, 1992) set forth in this 1992 act 

shall be valid if based upon an act or failure to act that violated a provision of law or 

regulation in effect at the time of the act or failure to act. 

ANNOTATION 

Production at hearing of supporting substantial evidence not required. — An adjudicatory 

or trial-type hearing is not contemplated by this section; the validity of a regulation is not 

dependent upon support by substantial evidence adduced at a hearing. Wylie Bros. 

Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd., 80 N.M. 

633, 459 P.2d 159 (Ct. App. 1969). 

Notice and hearing prerequisite to granting variance. — The environmental improvement 

board cannot grant a variance without first having given the public reasonable notice and 

a hearing on the contemplated variance. Where the notice of the hearing on a proposed 

amendment contains no mention of a variance, the board cannot legally grant a variance 
after the hearing. The order granting the variance is, therefore, void. 1976 Op. Att'y Gen. 

No. 76-23. 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 4. 

Validity of state and local air pollution administrative rules, 74 A.L.R.4th 566. 

39A C.J.S. Health and Environment §§ 138, 142. 

74-2-7. Permits; permit appeals to the environmental improvement board or the 

local board; permit fees. (2003) 

A. By regulation, the environmental improvement board or the local board shall 

require: 

(1) a person intending to construct or modify any source, except as otherwise 

specifically provided by regulation, to obtain a construction permit from the department 

or the local agency prior to such construction or modification; and 

(2) a person intending to operate any source for which an operating permit is required 

by the 1990 amendments to the federal act, except as otherwise specifically provided by 

regulation, to obtain an operating permit from the department or the local agency. 

B. Regulations adopted by the environmental improvement board or the local board 

shall include at least the following provisions: 

(1) requirements for the submission of relevant information, including information 

the department or the local agency deems necessary to determine that regulations and 

standards under the Air Quality Control Act [74-2-1 NMSA 1978] or the federal act will 

not be violated; 

(2) specification of the deadlines for processing permit applications; provided the 

deadline for a final decision by the department or the local agency on a construction 

permit application may not exceed: 

(a) ninety days after the application is determined to be administratively complete, if 

the application is not subject to requirements for prevention of significant deterioration, 

unless the secretary or the director grants an extension not to exceed ninety days for good 

cause, including the need to have public hearings; or 

(b) one hundred eighty days after the application is determined to be administratively 

complete, if the application is subject to requirements for prevention of significant 

deterioration, unless the secretary or the director grants an extension not to exceed ninety 

days for good cause, including the need to have public hearings; 

(3) that if the department or local agency fails to take final action on a construction 

permit application within the deadlines specified in Paragraph (2) of this subsection, the 

department or local agency shall notify the applicant in writing that an extension of time 

is required to process the application and specify in detail the grounds for the extension; 

(4) a description of elements required before the department or local agency shall 

deem an application administratively complete; 

(5) specification of the public notice, comment period and public hearing, if any, 

required prior to the issuance of a permit; provided the permit regulations adopted: 

(a) by the environmental improvement board shall include provisions governing 

notice to nearby states; and 

(b) by any local board shall include provisions requiring that notice be given to the 

department of all permit applications by any source that emits, or has a potential emission 

rate of, one hundred tons per year or more of any regulated air contaminant, including 
any source of fugitive emissions of each regulated air contaminant, at least sixty days 

prior to the date on which construction or major modification is to commence; 

(6) a schedule of construction permit fees sufficient to cover the reasonable costs of: 

(a) reviewing and acting upon any application for such permit; and 

(b) implementing and enforcing the terms and conditions of the permit, excluding any 

court costs or other costs associated with an enforcement action; 

(7) a schedule of emission fees consistent with the provisions of Section 502(b) (3) of 

the 1990 amendments to the federal act; 

(8) a method for accelerated permit processing that may be requested at the sole 

discretion of the applicant at the time the applicant submits a construction permit 

application and that: 

(a) allows the department or local agency to contract with qualified outside firms to 

assist the department or local agency in its accelerated review of the construction permit 

application; provided that the department or local agency can contract with a qualified 

firm that does not have a conflict of interest; and 

(b) establishes a process for the department or local agency to account for the 

expenditure of the accelerated permit processing fees; 

(9) allowance for additional permit application fees, sufficient to cover the reasonable 

costs of an accelerated permit application review process. Before the applicant is notified 

that the permit application has been determined to be complete, the department or local 

agency shall give the applicant a reasonable estimate of costs of an accelerated permit 

application review process; 

(10) specification of the maximum length of time for which a permit shall be valid; 

provided that for an operating permit such period may not exceed five years; and 

(11) for an operating permit only: 

(a) provisions consistent with Sections 502(b) and 505(b) of the federal act 

providing: 1) notice to and review and comment by the United States environmental 

protection agency; and 2) that if the department or local agency receives notice of 

objection from the United States environmental protection agency before the operating 

permit is issued, the department or the local agency shall not issue the permit unless it is 

revised and issued under Section 505(c) of the federal act; 

(b) provisions governing renewal of the operating permit; and 

(c) specification of the conditions under which the operating permit may be 

terminated, modified or revoked and reissued prior to the expiration of the term of the 

operating permit. 

C. Except as provided in Subsection O of this section, the department or the local 

agency may deny any application for: 

(1) a construction permit if it appears that the construction or modification: 

(a) will not meet applicable standards, rules or requirements of the Air Quality 

Control Act or the federal act; 

(b) will cause or contribute to air contaminant levels in excess of a national or state 

standard or, within the boundaries of a local authority, applicable local ambient air 

quality standards; or 

(c) will violate any other provision of the Air Quality Control Act [74-2-1 NMSA 

1978] or the federal act; and 
(2) an operating permit if the source will not meet the applicable standards, rules or 

requirements pursuant to the Air Quality Control Act or the federal act. 

D. The department or the local agency may specify conditions to any permit granted 

under this section, including: 

(1) for a construction permit: 

(a) a requirement that such source install and operate control technology, determined 

on a case-by-case basis, sufficient to meet the standards, rules and requirements of the 

Air Quality Control Act and the federal act; 

(b) individual emission limits, determined on a case-by-case basis, but only as 

restrictive as necessary to meet the requirements of the Air Quality Control Act and the 

federal act or the emission rate specified in the permit application, whichever is more 

stringent; 

(c) compliance with applicable federal standards of performance; 

(d) reasonable restrictions and limitations not relating to emission limits or emission 

rates; or 

(e) any combination of the conditions listed in this paragraph; and 

(2) for an operating permit, terms and conditions sufficient to ensure compliance with 

the applicable standards, rules and requirements pursuant to the Air Quality Control Act 

and the federal act. 

E. This section does not authorize the department or the local agency to require the 

use of machinery, devices or equipment from a particular manufacturer if the federal 

standards of performance, state regulations and permit conditions may be met by 

machinery, devices or equipment otherwise available. 

F. The issuance of a permit does not relieve any person from the responsibility of 

complying with the provisions of the Air Quality Control Act [74-2-1 NMSA 1978] and 

any applicable regulations of the environmental improvement board or the local board. 

Any conditions placed upon a permit by the department or the local agency shall be 

enforceable to the same extent as a regulation of its board. 

G. A person who participated in a permitting action before the department or the 

local agency shall be notified by the department or the local agency of the action taken 

and the reasons for the action. Notification of the applicant shall be by certified mail. 

H. A person who participated in a permitting action before the department or the 

local agency and who is adversely affected by such permitting action may file a petition 

for hearing before the environmental improvement board or the local board. The petition 

shall be made in writing to the environmental improvement board or the local board 

within thirty days from the date notice is given of the department's or the local agency's 

action. Unless a timely petition for hearing is made, the decision of the department or the 

local agency shall be final. 

I. If a timely petition for hearing is made, the environmental improvement board or 

the local board shall hold a hearing within sixty days after receipt of the petition. The 

environmental improvement board or the local board shall notify the petitioner and the 

applicant or permittee, if other than the petitioner, by certified mail of the date, time and 

place of the hearing. If the subject of the petition is a permitting action deemed by the 

environmental improvement board or the local board to substantially affect the public 

interest, the environmental improvement board or the local board shall ensure that the 

public receives notice of the date, time and place of the hearing. The public in such 
circumstances shall also be given a reasonable opportunity to submit data, views or 

arguments orally or in writing and to examine witnesses testifying at the hearing. Any 

person submitting data, views or arguments orally or in writing shall be subject to 

examination at the hearing. 

J. The environmental improvement board or the local board may designate a hearing 

officer to take evidence in the hearing. All hearings shall be recorded. 

K. The burden of proof shall be upon the petitioner. Based upon the evidence 

presented at the hearing, the environmental improvement board or the local board shall 

sustain, modify or reverse the action of the department or the local agency respectively. 

L. Notwithstanding any other provision of law and subject to the provisions of 

Section 74-2-4 NMSA 1978, a final decision on a permit by the department, the 

environmental improvement board, the local agency, the local board or the court of 

appeals that a source will or will not meet applicable local, state and federal air pollution 

standards and regulations shall be conclusive and is binding on every other state agency 

and as an issue before any other state agency shall be deemed resolved in accordance 

with that final decision. 

M. Subject to the provisions of Section 74-2-4 NMSA 1978, if the local board has 

adopted a permit regulation pursuant to this section, persons constructing or modifying 

any source within the boundaries of the local authority shall obtain a permit from the 

local agency and not from the department. 

N. Fees collected pursuant to this section shall be deposited in: 

(1) the state air quality permit fund created by Section 74-2-15 NMSA 1978 if 

collected by the department; or 

(2) a fund created pursuant to Section 74-2-16 NMSA 1978 if collected by a local 

agency pursuant to a permit regulation adopted by the local board pursuant to this 

section. 

O. The department may not deny an application for a construction permit for a cotton 

gin if the applicant proposes use of the best system of emissions reduction currently in 

use by cotton gins in the United States, as specified by regulation of the environmental 

improvement board, and the cotton gin has a potential emission rate, considering the use 

of the proposed emissions reduction system and the proposed hours of operation, of not 

more than fifty tons per year of any regulated air contaminant for which there is a 

national ambient air quality standard. The construction permit shall require that the 

applicant use the proposed emission reduction system and limit the hours of operation to 

the hours specified in the application. For purposes of this subsection, "best system of 

emissions reduction" for cotton gins means a system that will result in emissions 

reduction equal to or greater than that obtained by the use of condenser screens, seventymesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust 

collectors on high-pressure exhausts. 

 History: 1953 Comp., § 12-14-7, enacted by Laws 1972, ch. 51, § 4; 1973, ch. 322, § 4; 

1979, ch. 393, § 3; 1981, ch. 373, § 5; 1983, ch. 34, § 3; 1987, ch. 293, § 2; 1992, ch. 20, 

§ 8; 1999, ch. 139, § 1; 2001, ch. 133, § 2; 2003, ch. 8, § 1. 

Cross references. — For definitions of "department," "board" and "federal act," see 74-2-

2 NMSA 1978. 

The 1992 amendment, effective March 5, 1992, rewrote this section to the extent that a 

detailed comparison would be impracticable. 
The 1999 amendment, effective January 1, 2000, substituted "determine" for "ensure" in 

Subsection B(1); substituted "ninety days" for "one hundred eighty days" in Subsection 

B(2)(a); inserted "administratively", substituted "subject to" for "affected by" and added 

the language following "significant deterioration" in Subsections B(2)(a) and B(2)(b); 

substituted "one hundred eighty days" for "two hundred forty days" in Subsection 

B(2)(b); added Subsections B(3), B(4), B(8) and B(9), and redesignated the remaining 

subsections accordingly; substituted "in this paragraph" for "above" in Subsection 

D(2)(d); substituted "petition" for "request" in the last sentence of Subsection H; and 

substituted "sixty days" for "ninety days" in the first sentence of Subsection I. 

The 2001 amendment, effective June 15, 2001, substituted "local agency" for "local 

board" in Paragraph B(9); rewrote Subsections C and D; and deleted "new" preceding 

"source will or will not" in Subsection L. 

The 2003 amendment, effective June 20, 2003, added "except as provided in Subsection 

O of this section" at the beginning of Subsection C and added Subsection O. 

Meaning of "federal act". — See Paragraph F of 74-2-2 NMSA 1978 and notes thereto. 

Section 502 of that act, referred to in subparagraph B(11)(a), appears as 42 U.S.C. § 

7661a. Section 505 of that act, referred to in subparagraph B(11)(a), appears as 42 U.S.C. 

§ 7661d. 

ANNOTATION 

Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," 

see 4 N.M.L. Rev. 105 (1973). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction and application of 

statutes requiring assessment of environmental information prior to grants of entitlements 

for private land use, 76 A.L.R.3d 388. 

Application of § 165 of Clean Air Act (42 USCS § 7475), pertaining to preconstruction 

requirements for prevention of significant deterioration, to particular emission sources, 86 

A.L.R. Fed. 255. 

39A C.J.S. Health and Environment §§ 134 to 149. 

74-2-7.1. Local governing body authority; construction permits; electric generation 

facilities. (2001) 

A. A local governing body may receive a construction permit for a gas-fired electric 

generation facility with a one hundred megawatt or less generating capacity in 

accordance with the Air Quality Control Act [74-2-1 NMSA 1978] and may transfer the 

permit to the owner or operator of a facility that meets the specifications of the permit. 

B. A facility that receives a construction permit transferred from a local governing 

body shall notify the department within thirty days of receiving the transferred 

construction permit. The permit shall be effective for that facility when the department 

receives notification of the transfer. The local governing body that transfers the 

construction permit shall notify the owner or operator of the local electric distribution 

company and the public regulation commission of the permitted project, including its net 

capacity rating and intended date of service. 

C. As used in this section, "local governing body" means the council or other 

executive body charged with governing a municipality or county. 

D. The department may cooperate with and lend assistance to any Indian nation, tribe 

or pueblo located in the state in developing permitting procedures that fulfill federal 
environmental protection agency standards and that parallel the state permitting 

procedures described in Subsections A and B of this section. 

 History: Laws 2001, ch. 318, § 1. 

Effective dates. — Laws 2001, ch. 318 contains no effective date provision, but, pursuant 

to N.M. Const., art. IV, § 23, is effective June 15, 2001, 90 days after adjournment of the 

legislature. 

74-2-8. Variances. (1992) 

A. The environmental improvement board or the local board may grant an individual 

variance from the limitations prescribed under the Air Quality Control Act [Chapter 74, 

Article 2 NMSA 1978], any regulation of the environmental improvement board or the 

local board or any permit condition imposed by the department or the local agency 

whenever it is found, upon presentation of adequate proof: 

(1) that compliance with any part of that act, any regulation of the environmental 

improvement board or the local board or any permit condition will: 

(a) result in an arbitrary and unreasonable taking of property; or 

(b) impose an undue economic burden upon any lawful business, occupation or 

activity; and 

(2) that the granting of the variance will not: 

(a) result in a condition injurious to health or safety; or 

(b) cause or contribute to an air contaminant level in excess of any primary national 

ambient air quality standards. 

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

improvement board or the local board has considered the relative interests of the 

applicant, 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 requirements of 

Subsection A of this section and for time periods and under conditions consistent with the 

reasons therefor and within the following limitations: 

(1) if the variance is granted on the ground that there are no practicable means known 

or available for the adequate prevention, abatement or control of the air pollution 

involved, it shall be only until the necessary means for prevention, abatement or control 

become known and available; 

(2) if the variance is granted on the ground that compliance with the particular 

requirement from which variance is sought will necessitate the taking of measures that 

because of their extent or cost, must be spread over a considerable period of time, it shall 

be for a period not to exceed such reasonable time as, in the view of the environmental 

improvement board or the local board, is requisite for the taking of the necessary 

measures. A variance granted on the ground 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 relieve 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. 

D. Any person seeking a variance shall do so by filing a petition for variance with 

the secretary or the director charged with implementation of the Air Quality Control Act 
at the site where the variance will apply. The secretary or the director shall promptly 

investigate the petition and make recommendation to his respective board as to the 

disposition of the petition. 

E. Upon receiving the recommendation of the secretary or the director on the 

variance, the environmental improvement board or the local board shall: 

(1) if the secretary or the director favors a variance, hold a public hearing prior to the 

granting of any variance; and 

(2) if the secretary or the director is opposed to the granting of the variance, hold a 

hearing only upon the request of the petitioner. 

F. In the hearing, the burden of proof shall be upon the petitioner. 

 History: 1953 Comp., § 12-14-8, enacted by Laws 1967, ch. 277, § 8; 1970, ch. 58, § 6; 

1973, ch. 322, § 5; 1979, ch. 393, § 4; 1992, ch. 20, § 9. 

Cross references. — For definitions of "board" and "director," see 74-2-2 NMSA 1978. 

The 1992 amendment, effective March 5, 1992, revised the internal subsection 

designations in Subsection A, added Subsection A(2)(b), substituted "environmental 

improvement board or the local board" for "board" several times throughout the section, 

substituted "secretary or the director" for "director" several times throughout the section, 

added all of the present language of the first sentence of Subsection D following 

"director", and made stylistic changes throughout the section. 

ANNOTATION 

Criterion for denial of variance. — Board may deny variance when the air pollution that 

would result from granting variance would with reasonable probability injure health, but 

board may not deny variance upon mere showing that condition tends to cause harm. 

Duke City Lumber Co. v. New Mexico Envtl. Imp. Bd., 101 N.M. 291, 681 P.2d 717 

(1984). 

Air Quality Standards' margin of safety does not contemplate excursions beyond legal 

limits. — Petitioner's argument that Congress, by allowing an adequate margin of safety, 

not only contemplated but countenanced occasional excursions beyond the limits of the 

National Ambient Air Quality Standards is meritless since it is clear that the margin of 

safety protects against effects which have not yet been uncovered by research or whose 

medical significance is a matter of disagreement. Duke City Lumber Co. v. New Mexico 

Envtl. Imp. Bd., 102 N.M. 8, 690 P.2d 451 (Ct. App. 1984). 

Board may rely on division's modeling results to deny variance application. — The 

environmental improvement board may rely on the environmental improvement 

division's modeling results, showing particulate concentrations in excess of the legal 

limit, in arriving at its decision to deny a lumber company's application for a variance 

from air quality control regulations. Duke City Lumber Co. v. New Mexico Envtl. Imp. 

Bd., 102 N.M. 8, 690 P.2d 451 (Ct. App. 1984). 

Smoke may be "injurious to health and safety". — Smoke, in a given situation, may be 

composed of elements which at a given density or opacity may be "injurious to health or 

safety," as these words are used in Subsection A, but something more than the percentage 

of opacity must be shown. Duke City Lumber Co. v. New Mexico Envtl. Imp. Bd., 95 

N.M. 401, 622 P.2d 709 (Ct. App. 1980), rev'd on other grounds, 101 N.M. 291, 681 P.2d 

717 (1984). 

Notice and hearing prerequisite to granting variance. — The environmental improvement 

board cannot grant a variance without first having given the public reasonable notice and 
a hearing on the contemplated variance. Where the notice of the hearing on a proposed 

amendment contains no mention of a variance, the board cannot legally grant a variance 

after the hearing. The order granting the variance is, therefore, void. 1976 Op. Att'y Gen. 

No. 76-23. 

Burden of proving safety of variance on applicant. — The effect of the requirement of 

this section that the granting of the variance must not result in a condition injurious to 

health or safety is to impose the duty of proving a negative on the applicant for a 

variance. Duke City Lumber Co. v. New Mexico Envtl. Imp. Bd., 95 N.M. 401, 622 P.2d 

709 (Ct. App. 1980), rev'd on other grounds, 101 N.M. 291, 681 P.2d 717 (1984). 

But once party makes showing, burden of going forward shifts. — Once the party who 

seeks a variance and thus bears the burden of proof has made a prima facie showing, the 

burden of going forward with the evidence shifts to the opposing party. Duke City 

Lumber Co. v. New Mexico Envtl. Imp. Bd., 95 N.M. 401, 622 P.2d 709 (Ct. App. 1980), 

rev'd on other grounds, 101 N.M. 291, 681 P.2d 717 (1984). 

Law reviews. — For annual survey of New Mexico law relating to administrative law, 

see 12 N.M.L. Rev. 1 (1982). 

For article, "Substantial Evidence Reconsidered: The Post-Duke City Difficulties and 

Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of 

variance provisions in state and local air pollution control laws and regulations, 66 

A.L.R.4th 711. 

39A C.J.S. Health and Environment § 135. 

74-2-9. Judicial review; administrative actions. (1992) 

A. Any person adversely affected by an administrative action taken by the 

environmental improvement board, the local board, the secretary or the director 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 following the date of the 

action. 

B. For appeals of regulations, the date of the action shall be the date of the filing of 

the regulation by the environmental improvement board or the local board pursuant to the 

State Rules Act [Chapter 14, Article 4 NMSA 1978]. 

C. Upon appeal, the court of appeals shall set aside the action only if found to be: 

(1) arbitrary, capricious or an abuse of discretion; 

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

(3) otherwise not in accordance with law. 

D. After a hearing and a showing of good cause by the appellant, a stay of the action 

being appealed may be granted: 

(1) by the environmental improvement board, the local board, the department or the 

local agency, whichever took the action being appealed; or 

(2) by the court of appeals if the environmental improvement board, the local board, 

the department or the local agency denies a stay or fails to act upon an application for a 

stay within sixty days after receipt of the application. 

 History: 1953 Comp., § 12-14-8.1, enacted by Laws 1971, ch. 57, § 1; 1979, ch. 393, § 

5; 1992, ch. 20, § 10. 
The 1992 amendment, effective March 5, 1992, substituted the present section catchline 

for "Variances; judicial review"; in Subsection A, substituted all of the present language 

of the first sentence preceding "may appeal" for "Any person to whom the board denies a 

variance, after a hearing," and substituted "following the date of the action" for "after the 

board's denial" in the second sentence; rewrote Subsection B; substituted "action" for 

"board's denial of the variance request" in the introductory paragraph of Subsection C; 

and rewrote Subsection D. 

ANNOTATION 

Standard of judicial review. — The substantial evidence rule for administrative appeals is 

supplemented with a "whole record" standard for judicial review of findings of fact made 

by administrative agency, so that the standard for upholding a decision by the 

environmental improvement board is whether the decision is supported by substantial 

evidence in record as a whole. Duke City Lumber Co. v. New Mexico Envtl. Imp. Bd., 

101 N.M. 291, 681 P.2d 717 (1984). 

Law reviews. — For article, "Substantial Evidence Reconsidered: The Post-Duke City 

Difficulties and Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 39A C.J.S. Health and Environment §§ 

146 to 149. 

74-2-10. Emergency powers of the secretary and the director. (1992) 

A. Notwithstanding any other provision of the Air Quality Control Act [Chapter 74, 

Article 2 NMSA 1978], if the secretary or the director determines that a source or 

combination of sources presents an imminent and substantial endangerment to the public 

health or welfare or to the environment, he may bring suit in the district court for the 

county in which the source is located to restrain immediately any person causing or 

contributing to the alleged air pollution to stop the emission of air contaminants causing 

or contributing to such air pollution or to take such other action as may be necessary. 

B. If it is not practicable to assure prompt protection of the public health or welfare 

or the environment by commencement of a civil action, the secretary or the director may 

issue orders necessary to protect the public health or welfare or the environment. An 

order shall be effective for a period of not more than twenty-four hours, unless the 

secretary or the director brings a civil action before the expiration of twenty-four hours. 

If the secretary or the director brings an action within that time, the order shall be 

effective thereafter for forty-eight hours or for such longer period as may be authorized 

by the court pending litigation. 

 History: 1978 Comp., § 74-2-10, enacted by Laws 1992, ch. 20, § 11. 

Cross references. — For definition of "secretary" and "director," see 74-2-2 NMSA 1978. 

Repeals and reenactments. — Laws 1992, ch. 20, § 11 repeals former 74-2-10 NMSA 

1978, as amended by Laws 1981, ch. 373, § 6, and enacts the above section, effective 

March 5, 1992. For provisions of former section, see 1990 Replacement Pamphlet. 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control §§ 

2012, 2050. 

74-2-11. Confidential information. (1992) 

A. Any records, reports or information obtained under the Air Quality Control Act 

[Chapter 74, Article 2 NMSA 1978] by the department, the environmental improvement 
board, the local board or the local agency shall be available to the public, except that 

upon a satisfactory showing to the secretary, the director, the environmental improvement 

board, the local board or the local agency, as applicable, by any person that records, 

reports or information, or particular parts thereof, except emission data, to which the 

department, the local agency, the environmental improvement board or the local board 

has access under the Air Quality Control Act, if made public, would divulge confidential 

business records or methods or processes entitled to protection as trade secrets of that 

person, the secretary, the director, the environmental improvement board or the local 

board, as applicable, shall consider such record, report or information, or particular 

portion thereof, confidential in accordance with the provisions of Section 14-2-1 NMSA 

1978 and 18 U.S.C. Section 1905, except that such record, report or other information 

may be disclosed: 

(1) to other officers, employees or authorized representatives of the department, the 

local agency, the environmental improvement board or the local board concerned with 

carrying out the Air Quality Control Act; 

(2) to officers, employees or authorized representatives of the United States 

environmental protection agency concerned with carrying out the federal act; or 

(3) when relevant, in any proceeding under the Air Quality Control Act or the federal 

act. 

B. The environmental improvement board or the local board shall adopt regulations 

to implement this section, including regulations specifying those business records entitled 

to treatment as confidential records. 

 History: 1978 Comp., § 74-2-11, enacted by Laws 1992, ch. 20, § 12. 

Cross references. — For definitions of "board" and "department," see 74-2-2 NMSA 

1978. 

Repeals and reenactments. — Laws 1992, ch. 20, § 12 repeals former 74-2-11 NMSA 

1978, as amended by Laws 1979, ch. 393, § 6, and enacts the above section, effective 

March 5, 1992. For provisions of former section, see 1990 Replacement Pamphlet. 

ANNOTATION 

Board may publish nonconfidential contaminant data. — The environmental 

improvement board, subject to the confidentiality provision contained in this section, may 

make air contaminant emission data and other information available to the public. 1972 

Op. Att'y Gen. No. 72-17. 

Operator of contaminant source must demonstrate confidentiality. — The owner or 

operator of an air contaminant source has the burden to establish whether records or 

information furnished to or obtained by the environmental improvement board or any 

other air quality control board are entitled to confidentiality. 1972 Op. Att'y Gen. No. 72-

42. 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law §§ 29 

et seq.; 127. 

74-2-11.1. Limitations on regulations. (1992) 

The Air Quality Control Act [Chapter 74, Article 2 NMSA 1978] does not: 

A. authorize the environmental improvement board or the local board to make any 

regulation with respect to any condition or quality of the outdoor atmosphere if the 

condition or air quality level and its effect are confined entirely within the boundaries of 
the industrial or manufacturing property within which the air contaminants are or may be 

emitted and public access is restricted within such boundaries; 

B. grant to the environmental improvement board or the local board any jurisdiction 

or authority affecting the relation between employers and employees with respect to or 

arising out of any condition of air quality; or 

C. supersede or limit the applicability of any law relating to industrial health, safety 

or sanitation. 

 History: 1978 Comp., § 74-2-11.1, enacted by Laws 1979, ch. 393, § 7; 1992, ch. 20, § 

13. 

The 1992 amendment, effective March 5, 1992, substituted "environmental improvement 

board or the local board" for "board" near the beginning of Subsections A and B, and 

deleted "except that a source which uses a supplemental or intermittent control system for 

purposes of complying with a primary nonferrous smelter order may not temporarily 

reduce the pay of any employee by reason of the use of such supplemental or intermittent 

control system or other dispersion dependent control system" at the end of Subsection B. 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity of state and local air pollution 

administrative rules, 74 A.L.R.4th 566. 

74-2-12. Enforcement; compliance orders; field citations. (2001) 

A. When, on the basis of any information, the secretary or the director determines 

that a person has violated or is violating a requirement or prohibition of the Air Quality 

Control Act [74-2-1 NMSA 1978]], a regulation promulgated pursuant to that act or a 

condition of a permit issued under that act, the secretary or the director may: 

(1) issue a compliance order within one year after the violation [becomes] known by 

the department or the local agency stating with reasonable specificity the nature of the 

violation and requiring compliance immediately or within a specified time period or 

assessing a civil penalty for a past or current violation, or both; or 

(2) commence a civil action in district court for appropriate relief, including a 

temporary or permanent injunction. 

B. An order issued pursuant to Subsection A of this section may include a 

suspension or revocation of any permit, or portion thereof, issued by the secretary or the 

director. Any penalty assessed in the order shall not exceed fifteen thousand dollars 

($15,000) per day of noncompliance for each violation. 

C. An order issued pursuant to Subsection A of this section shall become final 

unless, no later than thirty days after the order is served, the person named therein 

submits a written request to the secretary or the director for a public hearing. Upon such 

request, the secretary or the director shall promptly conduct a public hearing. The 

secretary or the director shall appoint an independent hearing officer to preside over the 

public hearing. The hearing officer shall make and preserve a complete record of the 

proceedings and forward his recommendation based thereon to the secretary or the 

director, who shall make the final decision. 

D. The environmental improvement board or the local board may implement a field 

citation program through regulations establishing appropriate minor violations for which 

field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per 

day of violation may be issued by officers or employees of the department or the local 

agency as designated by the secretary or the director. 
E. A person to whom a field citation is issued pursuant to Subsection D of this 

section may, within a reasonable time as prescribed by regulation by the environmental 

improvement board or the local board, elect to pay the penalty assessment or to request a 

hearing by the issuing agency on the field citation. If a request for hearing is not made 

within the time specified in the regulation, the penalty assessment in the field citation 

shall be final. 

F. Payment of a civil penalty required by a field citation issued pursuant to 

Subsection D of this section shall not be a defense to further enforcement by the 

department or the local agency to correct a violation or to assess the maximum statutory 

penalty pursuant to other authorities in the Air Quality Control Act [74-2-1 NMSA 1978] 

if the violation continues. 

G. In determining the amount of a penalty to be assessed pursuant to this section, the 

secretary, the director or the person issuing a field citation shall take into account the 

seriousness of the violation, any good-faith efforts to comply with the applicable 

requirements and other relevant factors. 

H. In connection with a proceeding under this section, the secretary or the director 

may issue subpoenas for the attendance and testimony of witnesses and the production of 

relevant papers, books and documents and may adopt rules for discovery procedures. 

I. Penalties collected pursuant to an administrative order or a field citation shall be 

deposited in the: 

(1) municipal or county general fund, as applicable, if the administrative order or 

field citation was directed to a source located within a local authority; or 

(2) state general fund if the administrative order or field citation was directed to any 

other source. 

 History: 1978 Comp., § 74-2-12, enacted by Laws 1992, ch. 20, § 14; 2001, ch. 133, § 

3. 

Cross references. — For definitions of "department," "board", "secretary", and "director," 

see 74-2-2 NMSA 1978. 

Repeals and reenactments. — Laws 1992, ch. 20, § 14 repeals former 74-2-12 NMSA 

1978, as amended by Laws 1990, ch. 99, § 68, and enacts the above section, effective 

March 5, 1992. For provisions of former section, see 1990 Replacement Pamphlet. 

Bracketed material. — The bracketed word "becomes" in Subsection A(1) was inserted 

by the compiler. It was not enacted by the legislature, and it is not part of the law. 

The 2001 amendment, effective June 15, 2001, inserted "within one year after the 

violation known by the department or the local agency" in Paragraph A(1). 

ANNOTATION 

Responsibility for enforcement. — Enforcement of New Mexico regulations and 

standard's more stringent than, or in addition to, the federal standards and regulations is 

the state's responsibility; the environmental improvement board has state-wide 

responsibility for enforcing the Air Quality Control Act but the Albuquerque-Bernalillo 

county air quality control board has this responsibility in the Albuquerque-Bernalillo 

county area. 1987 Op. Att'y Gen. No. 87-11. 

Opportunity to comply not required before imposition of penalties. — Statutory penalties 

can be imposed without the department of environment having first sought voluntary 

cooperation and compliance. Espinosa v. Roswell Tower, Inc., 1996-NMCA-006, 121 

N.M. 306, 910 P.2d 940. 
Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," 

see 4 N.M.L. Rev. 105 (1973). 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 4. 

Validity of regulation of smoke and other air pollution, 78 A.L.R.2d 1305. 

Necessity of showing scienter, knowledge or intent, in prosecution for violation of air 

pollution or smoke control statute or ordinance, 46 A.L.R.3d 758. 

Maintainability in state court of class action for relief against air or water pollution, 47 

A.L.R.3d 769. 

Propriety of court's consideration of ecological effects of proposed project in determining 

right of condemnation, 47 A.L.R.3d 1267. 

Air pollution control: sufficiency of evidence of violation in administrative proceeding 

terminating in abatement order, 48 A.L.R.3d 795. 

Pollution control: preliminary mandatory injunction to prevent, correct or reduce effects 

of polluting practices, 49 A.L.R.3d 1239. 

Right to maintain action to enjoin public nuisance as affected by existence of pollution 

control agency, 60 A.L.R.3d 665. 

Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054. 

When statute of limitations begins to run as to cause of action for nuisance based on air 

pollution, 19 A.L.R.4th 456. 

Standing to sue for violation of state environmental regulatory statute, 66 A.L.R.4th 685. 

Construction, applicability and effect of § 304 of Clean Air Amendments of 1970 (42 

U.S.C.S. § 1857h-2) in actions against alleged violators, 37 A.L.R. Fed. 320, 85 A.L.R. 

Fed. 118. 

Construction and application of 42 USCS § 7604(d) pertaining to recovering costs of 

litigation in suits under Clean Air Act, 85 A.L.R. Fed. 118. 

39A C.J.S. Health and Environment § 150. 

74-2-12.1. Civil penalty; representation of department or local authority; limitation 

of actions. (2001) 

A. A person who violates a provision of the Air Quality Control Act [74-2-1 NMSA 

1978] or a regulation, permit condition or emergency order adopted or issued pursuant to 

that act may be assessed a civil penalty not to exceed fifteen thousand dollars ($15,000) 

for each day during any portion of which a violation occurs. 

B. In an action to enforce the provisions of the Air Quality Control Act or an 

ordinance, regulation, permit condition or emergency order, adopted, imposed or issued 

pursuant to that act: 

(1) the department shall be represented by the attorney general; 

(2) a local authority that is a municipality shall be represented by the attorney of the 

municipality; and 

(3) a local authority that is a county shall be represented by the district attorney 

within whose judicial district the county lies. 

C. No action for civil penalty shall be commenced more than five years from the date 

the violation was known by the department or the local agency. 

 History: 1978 Comp., § 74-2-12.1, enacted by Laws 1992, ch. 20, § 15; 2001, ch. 133, § 

4. 

The 2001 amendment, effective June 15, 2001, inserted Subsection C. 
ANNOTATION 

Disposal penalty authorized. — An award that represented three times the costs that the 

department of environment incurred in contracting for removal of a pile of asbestoscontaining debris, including a six percent gross receipts tax, was consistent with the 

penalties authorized by law. Espinosa v. Roswell Tower, Inc., 1996-NMCA-006, 121 

N.M. 306, 910 P.2d 940. 

74-2-13. Inspection. (1992) 

The secretary or the director or an authorized representative of either, upon presentation 

of his credentials: 

A. shall have a right of entry to, upon or through any premises on which an emission 

source is located or on which any records required to be maintained by regulations of the 

environmental improvement board, the local board or by any permit condition are 

located; and 

B. may at reasonable times: 

(1) have access to and copy any records required to be established and maintained by 

regulations of the environmental improvement board or the local board or any permit 

condition; 

(2) inspect any monitoring equipment and method required by regulations of the 

environmental improvement board, the local board or by any permit condition; and 

(3) sample any emissions that are required to be sampled pursuant to regulation of the 

environmental improvement board, the local board or any permit condition. 

 History: 1953 Comp., § 12-14-11.1, enacted by Laws 1972, ch. 51, § 8; 1992, ch. 20, § 

16. 

Cross references. — For definitions of "department" and "board," see 74-2-2 NMSA 

1978. 

The 1992 amendment, effective March 5, 1992, rewrote the introductory paragraph, 

which formerly read: "Any employee of the department or board, upon presentation of 

proper department or board credentials:"; in Subsection A, deleted "at reasonable times" 

following "have" and substituted all of the present language of the subsection following 

"regulations" for "of the board"; and rewrote Subsection B, which formerly read: "may at 

reasonable times have access to and copy any records required to be established and 

maintained by regulations of the board". 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 73 C.J.S. Public Administrative Law and 

Procedure § 22; 73A C.J.S. Public Administrative Law and Procedure §§ 126, 127. 

74-2-14. Criminal penalties. (1995) 

A. Notwithstanding any other provision of the Air Quality Control Act [Chapter 74, 

Article 2 NMSA 1978], a local authority may prescribe penalties for violations of an 

ordinance: 

(1) regulating open-fire burning or residential incineration; or 

(2) prohibiting the removal of motor vehicle emission control devices installed as 

required by law and requiring the maintenance of such devices in operating condition. 

B. Notwithstanding any other provision of the Air Quality Control Act, it is a petty 

misdemeanor to violate any regulations of the environmental improvement board: 

(1) regulating open-fire burning or residential incineration; or 
(2) prohibiting the removal of motor vehicle emission control devices installed as 

required by law or requiring the maintenance of such devices in operating condition. 

C. Except as provided in Subsection D of this section, any person who knowingly 

commits any of the following acts is guilty of a fourth degree felony and shall be 

sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978: 

(1) violation of any regulation relating to commercial or industrial incineration; 

(2) violation of any regulation adopting any federal standard of performance; 

(3) violation of any regulation relating to control of hazardous air pollutants; or 

(4) violation of any regulation relating to control of toxic air pollutants. 

D. At any source required to have an operating permit pursuant to Section 502 of the 

federal act, any person who knowingly commits any violation of any applicable standard, 

regulation or requirement under the Air Quality Control Act or the federal act, any term 

or condition of an operating permit or any emission fee or filing requirement in any 

operating permit regulation of the environmental improvement board or the local board is 

guilty of a fourth degree felony and shall, upon conviction, be punished by a fine of not 

more than ten thousand dollars ($10,000) per day per violation or by imprisonment of not 

more than eighteen months, or both. 

E. Any person who knowingly commits any violation of a regulation of the 

environmental improvement board or the local board not listed in Subsection B, C or D of 

this section is guilty of a misdemeanor and shall be sentenced in accordance with the 

provisions of Section 31-19-1 NMSA 1978. 

F. Any person who knowingly: 

(1) makes any false statement, representation or certification in any application, 

record, report, plan or other document filed or required to be maintained under the Air 

Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any 

regulation adopted pursuant to that Act; or 

(2) falsifies, tampers with or knowingly renders inaccurate any monitoring device or 

method required to be maintained under the Air Quality Control Act, any permit issued 

pursuant to the Air Quality Control Act or any ordinance or regulation adopted pursuant 

to that act is guilty of a misdemeanor and shall, upon conviction, be punished by a fine of 

not more than ten thousand dollars ($10,000) per day per violation or by imprisonment 

for not more than twelve months, or by both. 

G. Any person who knowingly releases into the ambient air any hazardous air 

pollutant or extremely hazardous substance listed pursuant to Section 302(a)(2) of the 

Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 1102(a)(2) that is 

not listed in Section 112 of the federal act and who knows at the time of the release that 

he creates a substantial danger of death or serious bodily injury to another person is guilty 

of a second degree felony and, upon conviction, shall be sentenced to a term of 

imprisonment not to exceed nine years or a fine not to exceed one hundred thousand 

dollars ($100,000), or both. Any person, other than an individual or a governmental 

entity, who commits such violation is guilty of a second degree felony and shall be fined 

in an amount not to exceed two hundred fifty thousand dollars ($250,000). If a 

conviction of any person under this subsection is for a second or subsequent violation, the 

maximum punishment shall be doubled with respect to both the fine and the 

imprisonment. 
 History: 1953 Comp., § 12-14-12, enacted by Laws 1967, ch. 277, § 11; 1970, ch. 58, § 

9; 1971, ch. 277, § 25; 1973, ch. 322, § 7; 1990, ch. 99, § 69; 1992, ch. 20, § 17; 1995, 

ch. 162, § 1. 

The 1992 amendment, effective March 5, 1992, in Subsection A, substituted "a local 

authority" for "any class A county or municipality within a class A county" in the 

introductory paragraph; in Subsection B, substituted "knowingly commits any of the 

following acts" for "violates any regulation of the board regulating commercial or 

industrial incineration" in the introductory paragraph, while substituting a colon for a 

period at the end of the paragraph, and added paragraphs (1) to (4); and added 

Subsections D to F. 

The 1995 amendment, effective June 16, 1995, inserted the proviso at the beginning of 

Subsection C, added Subsection D and redesignated the remaining subsections 

accordingly, subdivided Subsection F, adding the language beginning "any permit issued" 

in Paragraph (1) and rewriting Paragraph (2), and made minor stylistic changes 

throughout the section. 

Meaning of "federal act". — See Subsection F of 74-2-2 NMSA 1978 and notes thereto. 

 Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 

et seq. 

Liability for spread of fire intentionally set for legitimate purpose, 25 A.L.R.5th 391. 

Construction and application of preemption sections (§§ 208, 210(c)(4)) of Clean Air Act 

(42 U.S.C.S. §§ 1857f-6a, 1857f-6c(c)(4)), 18 A.L.R. Fed. 971. 

What are "land-use and transportation controls" which may be imposed, under § 

100(a)(2)(B) of Clean Air Act of 1970 (42 U.S.C.S. § 1857c-5(a)(2)(B)), to insure 

maintenance of national primary ambient air quality standards, 30 A.L.R. Fed. 156. 

Construction and application of § 2Q1.2 and 2Q1.3 of United States Sentencing 

Guidelines (18 USCS Appx 2Q1.2 and 2Q1.3), pertaining to offenses involving 

hazardous or toxic substances, or other environmental pollutants, 138 A.L.R. Fed. 507. 

39A C.J.S. Health and Environment § 139. 

74-2-15. State air quality permit fund. (1992) 

A. There is created in the state treasury the "state air quality permit fund" to be 

administered by the department. All fees collected by the department pursuant to Section 

74-2-7 NMSA 1978 shall be deposited in the state air quality permit fund. 

B. Money in the state air quality permit fund is appropriated to the department for 

the purpose of paying the reasonable costs of: 

(1) reviewing and acting upon any application for a permit; 

(2) if the owner or operator receives a permit, implementing and enforcing the terms 

and conditions of such permit not including any court costs or other costs associated with 

any enforcement action; 

(3) emissions and ambient monitoring; 

(4) preparing generally applicable regulations or guidance; 

(5) modeling, analysis and demonstrations; and 

(6) preparing inventories and tracking emissions. 

 History: 1978 Comp., § 74-2-15, enacted by Laws 1992, ch. 20, § 18. 

Repeals and reenactments. — Laws 1992, ch. 20, § 18 repeals former 74-2-15 NMSA 

1978, as amended by Laws 1979, ch. 393, § 9, relating to additional means of 
enforcement, and enacts the above section, effective March 5, 1992. For provisions of 

former section, see 1990 Replacement Pamphlet. 

74-2-15.1. Repealed. (1992) 

Repeals. — Laws 1992, ch. 20, § 21 repeals 74-2-15.1 NMSA 1978, as enacted by Laws 

1979, ch. 393, § 10, relating to primary nonferrous smelter orders, effective March 5, 

1992. For provisions of former section, see 1990 Replacement Pamphlet. 

74-2-16. Municipal or county air quality permit fund. (1992) 

A. A local authority shall create within the municipal or county treasury 

 a fund to be known as the 

"__________________________________________________ 

 (name of municipality or county) 

 air quality permit fund". All fees collected by a municipality or county pursuant to 

Section 74-2-7 NMSA 1978 shall be deposited in the fund created pursuant to this 

section. 

B. Money in the fund created pursuant to this section shall be used by the 

municipality or county only for the purpose of paying the reasonable costs of: 

(1) appealing, reviewing and acting upon any application for a permit; 

(2) if the owner or operator receives a permit, implementing and enforcing the terms 

and conditions of such permit, not including any court costs or other costs associated with 

any enforcement action; 

(3) emissions and ambient monitoring; 

(4) preparing generally applicable regulations or guidance; 

(5) modeling, analysis and demonstrations; and 

(6) preparing inventories and tracking emissions. 

 History: 1978 Comp., § 74-2-16, enacted by Laws 1992, ch. 20, § 19. 

Repeals and reenactments. — Laws 1992, ch. 20, § 19 repeals former 74-2-16 NMSA 

1978, as enacted by Laws 1970, ch. 58, § 11, relating to declaratory judgement on 

regulations, effective March 5, 1992. For provisions of former section, see 1990 

Replacement Pamphlet. 

74-2-17. Continuing effect of existing laws, rules and regulations. (1992) 

A. The Air Quality Control Act [Chapter 74, Article 2 NMSA 1978] is 

supplementary to other legislation and does not repeal any laws but takes precedence 

over any law that conflicts with the provisions of that act. 

B. All county and municipal ordinances and all state, county and municipal 

regulations relating to air quality and air pollution are continued in effect until revised or 

repealed by the governmental body or administrative agency having jurisdiction; 

provided that copies of each ordinance and regulation: 

(1) were filed under the State Rules Act [Chapter 14, Article 4 NMSA 1978] on or 

before May 3, 1967; or 

(2) if adopted after May 3, 1967: 

(a) were adopted by a governmental body or administrative agency having 

jurisdiction to do so under the Air Quality Control Act as in effect at the time of such 

adoption; and 
(b) if required by the Air Quality Control Act as in effect at the time of such 

adoption, have been filed under the State Rules Act. 

 History: 1953 Comp., § 12-14-13, enacted by Laws 1967, ch. 277, § 13; 1970, ch. 58, § 

12; 1992, ch. 20, § 20. 

The 1992 amendment, effective March 5, 1992, substituted "existing" for "present" in the 

section catchline; designated the formerly undesignated first sentence as Subsection A, 

while therein substituting all of the present language following "repeal any laws" for 

"except those in direct conflict therewith"; rewrote and restructured the formerly 

undesignated second sentence as the introductory paragraph of Subsections B and B(1); 

and added Subsection B(2). 

74-2-18 to 74-2-22. Repealed. (1981) 

Repeals. — Laws 1981, ch. 373, § 7, repeals 74-2-18 to 74-2-22 NMSA 1978, relating to 

interstate cooperation concerning air pollution, effective April 10, 1981. 
ATTACHMENT C 

20.1 1.102, Oxygenated Fuels, as amended and filed 
TITLE 20 ENVIRONMENTAL PROTECTION 

CHAPTER 11 ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD 

PART 102 OXYGENATED FUELS 

20.11.102.1 ISSUING AGENCY: Albuquerque-Bemalillo County Air Quality Control Board, c/o 

Environmental Health Department, P.O. Box 1293, Albuquerque, NM 87103. Telephone: (505) 768-2600. 

[11/1/89. . .12/1/95; 20.1 1.102.1 NMAC - Rn, 20 NMAC 11.102.1.1, 10/1/02; A, 9/1/04] 

20.11.102.2 SCOPE: 20.1 1.102 NMAC is applicable to gasoline motor fuel sold retail or wholesale or 

supplied for use in motor vehicles in Bemalillo County except Indian lands. 

[12/1/95; 20.1 1.102.2 NMAC - Rn, 20 NMAC 11.102.1.2, 10/1/02; A 1211 1/05] 

20.1 1.102.3 STATUTORY AUTHORITY: 20.1 1.102 NMAC is adopted pursuant to the authority provided 

in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4,74-2-5.B; the Joint Air Quality Control 

Board Ordinance, Bemalillo County Ordinance 94-5 Sections 4 and 5; and the Joint Air Quality Control Board 

Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5-1-4 and 9-5-1-5. 

[11/1/89. . .12/1/95; 20.1 1.102.3 NMAC - Rn, 20 NMAC 11.102.1.3, 10/1/02; A, 9/1/04; A 12/11/05] 

20.1 1.102.4 DURATION: Permanent. 

[12/1/95; 20.1 1.102.4 NMAC - Rn, 20 NMAC 11.102.1.4, 10/1/02] 

20.11.102.5 EFFECTIVE DATE: December 1, 1995, unless a later date is cited at the end of a section. 

[12/1/95; 20.1 1.102.5 NMAC - Rn, 20 NMAC 11.102.1.5 & A, 10/1/02] 

20.11.102.6 OBJECTIVE: To provide for the use of oxygenated fuels in Bemalillo county to reduce tail pipe 

emissions from gasoline powered motor vehicles and to establish a contingency measure in the event that monitored 

carbon monoxide levels in Bemalillo county exceed 85 percent of the federal ambient carbon monoxide standards. 

[6/15/95. . .12/1/95; 20.1 1.102.6 NMAC - Rn, 20 NMAC 11.102.1.6, 10/1/02; A, 9/1/04] 

20.1 1,102.7 DEFINITIONS: In addition to the definitions in 20.1 1.102.7 NMAC the definitions in 20.1 1.1 

NMAC apply unless there is a conflict between definitions, in which case the definition in 20.1 1.102.7 NMAC shall 

govem. 

A. "Department" means the Albuquerque environmental health department or its successor agency. 

B. "Ethanol" means a colorless volatile flammable alcohol with the molecular composition of 

CH3CH20H. 

C. "Facility" or "facilities" means a place or places of business which sells or supplies for 

wholesale or retail purposes gasoline motor fuel, including fuel-transporting businesses. 

D. "Gasoline motor fuels" means any flammable liquid used primarily as fuel for the propulsion of 

motor vehicles, but does not include diesel engine fuel, kerosene, liquefied petroleum gas, natural gas and products 

specially prepared and sold for use in the turbo-prop or jet-type engines. 

E. "Manager" means the manager of the vehicle pollution management division (VPMD). 

F. "MTBE" means methyl tertiary butyl ether. 

G. "Methanol" means a light volatile flammable poisonous liquid alcohol CH30H formed by the 

destructive distillation of wood or manufactured from natural gas or coal, and used in combination with heavier cosolvent alcohols as an octane enhancer for addition to gasoline. 

H. "Motor vehicle" means any vehicle propelled by a spark ignited internal combustion engine 

which is designed primarily for travel on public highways and which is generally and commonly used to transport 

persons and property over the public highways. 

I. "Oxygen content by weight" means a measurement of the percentage of oxygen in an 

oxygenated fuel. 

J. "Oxygenate" means any oxygen-containing ashless, organic compound which may be used as a 

fuel or as a gasoline blending component and which was approved as a blending agent under the provisions of a 

waiver issued by the U.S. environmental protection agency pursuant to the Clean Air Act, Section 21 1 (f) (4). 

K. "Oxygenated fuel" means a motor vehicle fuel blend, whether leaded or unleaded, consisting 

primarily of gasoline and a substantial amount of one or more oxygenates, generally an alcohol or ether. 

20.11.102 NMAC 
L. "Vehicle pollution management division (VPMD)" means the division within the department 

responsible for the administration of 20.1 1.102 NMAC. 

M. "Winter pollution season" means the annual period beginning the first day of November and 

ending at the conclusion of the last day of February of the immediately following year. 

[11/10/93; 20.11.102.7 NMAC - Rn, 20 NMAC 11.102.1.7, 10/1/02; A, 9/1/04; A 12/11/05] 

20.1 1.102.8 VARIANCES: [Reserved] 

[12/1/95; 20.1 1.102.8 NMAC - Rn, 20 NMAC 11.102.8, 10/1/02] 

20.11.102.9 SAVINGS CLAUSE: Any amendment of 20.1 1.102 NMAC that is filed with the state records 

center shall not affect actions pending for violation of a city or county ordinance, or prior versions of 20.1 1.102 

NMAC. Prosecution for a prior violation shall be governed and prosecuted under the statute, ordinance, regulation, 

part or permit in effect at the time the violation was committed. 

[11/10/93. . .12/1/95; 20.1 1.102.9 NMAC - Rn, 20 NMAC 11.102.1.9, 10/1/02; A, 9/1/04; A 1211 1/05] 

20.11.102.10 SEVERABILITY: If any section, subsection, sentence, phrase, clause, or word of 20.1 1 .lo2 

NMAC or any federal standards incorporated herein is for any reason held to be unconstitutional or otherwise 

invalid by any court, the decision shall not affect the validity of the remaining provisions of 20.1 1.1 02 NMAC. 

[11/10/93.. ,1211195; 20.11.102.10NMAC- Rn, 20NMAC 11.102.1.10, 10/1/02; A 12/11/05] 

20.11.102.11 DOCUMENTS: Documents incorporated and cited in 20.1 1.102 NMAC may be viewed at the 

Albuquerque environmental health department, 400 Marquette NW, Albuquerque, NM, 87 102. 

[12/1/95; 20.1 1.102.1 1 NMAC - Rn, 20 NMAC 11.102.1.1 1 &A, 10/1/02; A, 9/1/04; A 1211 1/05] 

20.11.102.12 OXYGENATED FUELS: During the winter pollution season, oxygenated fuels shall be used in 

all gasoline powered motor vehicles as a wintertime air pollution control strategy for reduction of carbon monoxide 

emissions in Bernalillo county. 

A. Annual program duration and minimum oxygen content: 

(I) During the winter pollution season, no person shall supply or sell any gasoline motor fuel 

intended as a final product for fueling of motor vehicles within Bernalillo county, or sell at retail, or sell to a private 

or government fleet for consumption; or introduce such fuels into a motor vehicle in Bernalillo county unless the 

fuel contains a minimum 2.7 percent oxygen content by weight, except as required pursuant to 20.1 1.102.14 NMAC. 

(2) The department shall establish the blending tolerance for oxygenated fuels. 

(3) The board, after considering EPA guidelines and other applicable information, reports, data, and 

testimony, may make a determination by July of each year whether the oxygenate levels should be modified or 

remain the same. 

(4) Oxygenates approved for use in this program shall be blended per unit volume of gasoline motor 

fuel, and blended up to 10 percent by volume for ethanol, or at the volume for any other gasoline motor fuel additive 

which has been issued a waiver by the EPA pursuant to the Clean Air Act, Section 2 11 (f) (4). 

(5) No gasoline motor fuel blended with methanol and intended as a final product for fueling of 

motor vehicles shall be sold at retail or to a private or government fleet within Bernalillo county. 

B. Inventory: Any supplier who provides gasoline or oxygenate blends in bulk in Bernalillo county 

must register with VPMD and provide the names, addresses and telephone numbers of all jobbers, fleet fueling 

facilities and retail outlets supplied. The inventory shall be submitted to VPMD by November 30,2005 and by 

October 3 1 each year thereafter. 

C. Recordkeeping: During the winter pollution season, any supplier providing gasoline in Bernalillo 

county must document whether each batch is oxygenated, the oxygen content by weight and the oxygenate type and 

percent by volume. This documentation must accompany each shipment and be kept on file by the retailer or fleet 

facility for the duration of the winter pollution season. 

D. Labeling and notice to the public: 

(1) All oxygenated motor fuel sold shall be clearly labeled at each dispensing pump identifying the 

type of oxygenate, with labels provided by the department. 

(2) All retail gasoline facilities shall keep readily available all pamphlets, brochures, fact sheets, and 

other written information provided to them by the department for information and dissemination to the public. 

E. Sampling: A minimum of 20 percent of all retail stations and 10 percent of all fleet fueling 

facilities will be sampled. The department, upon presentation of proper identification, shall be allowed to enter a 

20.11.102 NMAC 
facility during reasonable times. The department may collect those samples deemed appropriate after paying for or 

offering to pay for the samples at any facility. Samples will be collected through the filler of the underground 

gasoline storage tanks as outlined in 40 CFR Part 80, Appendix D. If a sample cannot be taken directly from the 

underground tank, the sample may be taken from the gas pump nozzle and labeled accordingly. 

F. ~nal~sis: The department shall make a good faith effort to analyze the samples as soon as 

possible. Samples shall be analyzed in the field or at the VPMD laboratory on the same day the samples are 

collected, circumstances permitting. Samples will be analyzed for ethanol, MTBE, or other oxygenates. Any 

sample results contested by a distributor or station will be sent by the department to the New Mexico Department of 

Agriculture (NMDA) petroleum standards bureau for analysis. Sample analysis shall be conducted in accordance 

with the American society for testing and materials (ASTM) standards or equivalent. Analysis shall comply with 

ASTM D-5845, ASTM D-48 15, or equivalent standard. 

G. Enforcement: 

(1) Samples containing at least 2.5 percent oxygen by weight shall be considered in compliance. 

Samples containing at least 2.0 percent but less than 2.5 percent oxygen by weight will result in a notice of warning 

and must be corrected at the time of the next fuel delivery. Samples containing at least 1.5 percent but less than 2.0 

percent oxygen by weight will result in notice of violation (NOV) and must be corrected within 24 hours. The NOV 

kill cite the reason(s) for non-compliance and will include the sample date and the results of the analysis in percent 

oxygen by weight. Samples containing less than 1.5 percent oxygen by weight or repeat violations for samples 

below 2.5 percent oxygen by weight shall result in an immediate "stop sale" order which will remain in effect until 

the violation is correctkd as determined by the department. Any fuel dispensed in violation of a "stop sale" order 

will result in the director of the department issuing a compliance order and imposing a penalty of not less than $500 

and not more than $15,000 per day as authorized by the New Mexico Air Quality Act, NMSA 1978,74-2-12.B. 

(2) The department may enter into an agreement, as appropriate, with any agency of the state or other 

local government entity to assist in the monitoring, compliance, and enforcement of 20.1 1.102 NMAC. 

H. Suspension of program due to oxygenate shortage: Should extreme and unusual circumstances 

occur in the marketplace preventing the blending of oxygenates at the levels required by 20.1 1 .I02 NMAC, the 

manager may take the necessary steps as a temporary emergency measure to relax or suspend 20.1 1.102 NMAC. 

The manager shall inform the members of the board of such action taken within seven days of this occurrence. At 

its next regular meeting, or at a special meeting if so called, the board shall review the manager's action. 

I. Program review: By the regular meeting of the board in July of each program year, the 

department shall provide a report to the board reviewing the results of the which shall include an analysis 

of costs and benefits to the consumer, investigations of complaints, compliance and quality assurance activities, and 

other findings and recommendations. 

[11/10/93, 12/1/95; 20.1 1.102.12 NMAC - Rn, 20 NMAC 1 1.102.1.12 & Repealed, 10/1/02; Rn, 20 NMAC 

11.102.11.1, 10/1/02; A, 9/1/04; A 1211 1/05] 

20.11.102.13 Reserved 

[I 1/10/93; 20.1 1.102.13 NMAC - Rn, 20 NMAC 11.102.11.2, 10/1/02; A, 9/1/04; Repealed, 1211 1/05] 

20.11.102.14 CONTINGENCY MEASURE: If monitored carbon monoxide levels in Bernalillo county 

exceed 85 percent of the federal ambient carbon monoxide standards, then the minimum oxygen content by weight 

of 2.7 percent required in Paragraph (1), of Subsection A of 20.1 1.102.12 NMAC, will be increased to 3.0 percent 

beginning November 1 of the immediately following winter pollution season and continuing through the last day of 

the immediately following February and resuming every winter pollution season (November through February) 

thereafter. 

[11/10/93. . .6/15/95; 20.11.102.14 NMAC - Rn, 20 NMAC 11.102.11.3, 10/1/02; A, 9/1/04; A 12/11/05] 

HISTORY OF 20.1 1.102 NMAC: 

Pre-NMAC History: The material in this part was derived from that previously filed with the commission of 

public records - state records center and archives. 

Regulation No. 35, Alternative Fuels, 11/1/89; 

Regulation No. 35, Alternative Fuels, 6/25/92; 

Regulation No. 35, Alternative Fuels, 11/10/93; 

Regulation No. 35, Alternative Fuels, 6/15/95. 

History of Repealed Material: 

20.11.102 NMAC 
Other History: Regulation No. 35, Alternative Fuels, filed 6115195 was renumbered and reformatted into first 

version of the New Mexico Administrative Code as 20 NMAC 1 I .102, Oxygenated Fuels, filed 10127195. 

20 NMAC 11.102, Oxygenated Fuels, filed 10127195 was renumbered, reformatted, amended and replaced by 

20.1 1.102 NMAC, Oxygenated Fuels, effective 1011102. 

20.11.102 NMAC 
ATTACHMENT D 

Red-Line Strikeout Version of Proposed Rule, Published in the 

NM Register 
New Mexico Register 1 Volume XVI, Number 22 I November 30,2005 1271 

Bemalillo county that are located on lndian 

lands over which the AlbuquerqueBemalillo county air quality control board 

lacks jurisdiction. 

B. Exclusions: 

(1) 40 CFR 60, Subpart AAA, 

Standards of Performance for New 

Residential Wood Heaters. 

(2) 1- 

. . 11 

Reserved. 

c. Variances: The variance provisions of 20.1 1.7 NMAC, 

Variance Procedure, Revised Ordinances of 

Albuquerque 1994 Section 9-5-1 -8, 

Bemalillo County Ordinance 94-5, Section 

8, and NMSA 1978 Section 74-2-8 shall not 

apply to 20.1 1.63 NMAC or the incorporated federal standards. 

[1/1/2000; 20.11.63.2 NMAC - Rn, 20 

NMAC 11.63.2, 10/1/02; A, 1/1/05; A, 

1/1/06] 

ALBUQUERQUEBERNALILLO COUNTY 

AIR QUALITY CONTROL 

BOARD 

This is an amendment to 20.11.102 

NMAC, Sections 2; 3; 7; 9; 10; 11; 12; 13 

and 14, effective 12/11/05. 

20.11.102.2 SCOPE: [%is-%++] 

20.1 1.102 NMAC is applicable to gasoline 

fn otor fuel sold retail or wholesale or sup 

for use in motor vehicles in Bernalillo 

County except lndian lands. 

[12/1/95; 20.1 1.102.2 NMAC - Rn, 20 

NMAC 11.1 02.1.2, 10/1/02; A 1211 1/05] 

20.11.102.3 STATUTORY 

AUTHORITY: [TkifPcwc] 20.1 I. I02 

NMAC is adopted pursuant to the authority 

provided in the New Mexico Air Quality 

Control Act, NMSA 1978 Sections 74-2-4, 

[w] 74-2-5.B; the Joint Air Quality 

Control Board Ordinance, Bernalillo 

County Ordinance 94-5 Sections [&]A and 

[qll; and the Joint Air Quality Control 

Board Ordinance, Revised Ordinances of 

Albuquerque 1994 Sections [w] 

1-4 and [MI w. 

[I 1/1/89. . .121/95; 20.1 1.102.3 NMAC - Rn, 20 NMAC 11.102.1.3, 10/1/02; A, 

911 104; A 1211 1/05] 

20.11.102.7 DEFINITIONS: In 

addition to the definitions in 20.1 1.102.7 

NMAC the definitions in 20.11.1 NMAC 

apply unless there is a conllict betwecn dclinitions, in which case the delinilion in (&is 

- -- 

Pefe] 20.11.102.7 NMAC shall govem. 

A. "Department" means 

the Albuquerque environmental health 

department or its successor agency. 

B. "Ethanol" means a 

colorless volatile flammable alcohol with 

the molecular composition of [€.$&I 

ca$.H,QH. 

C. "Facility" or "facilities" means a place or places of business 

which sells or supplies for wholesale or 

retail purposes gasoline motor fuel, including fuel-transporting businesses. 

D. "Gasoline motor 

fuels" means [-] any 

flammable liquid used primarily as fuel for 

the propulsion of motor vehicles, but does 

not include diesel engine fuel, kerosene, liquefied petroleum gas, natural gas and products specially prepared and sold for use in 

the turbo-prop or jet-type engines. 

E. "Manager" means the 

manager of the vehicle pollution management division (VPMD). 

F. "MTBE" means 

methyl tertiary butyl ether. 

G "Methan~l'~ means a 

light volatile flammable poisonous liquid 

alcohol CH30H formed by the destructive 

distillation of wood or manufactured from 

natural gas or coal, and used in combination 

with heavier co-solvent alcohols as an 

octane enhancer for addition to gasoline. 

H. "Motor vehicle" 

means any vehicle propelled by a spark 

ignited internal combustion engine which is 

designed primarily for travel on public 

highways and which is generally and commonly used to transport persons and property over the public highways. 

1. "Oxygen content by 

weight" means a measurement of the percentage of oxygen in an oxygenated fuel. 

J. "Oxygenate" means 

any oxygen-containing ashless, organic 

compound which may be used as a fuel or 

as a gasoline blending component and 

which was approved as a blending agent 

under the provisions of a waiver issued by 

the U.S. environmental protection agency 

pursuant to the Clean Air Act, Section 21 1 

(f) (4). 

K. "Oxygenated fuelm 

means a motor vehicle fuel blend, whether 

leaded or unleaded, consisting primarily of 

gasoline and a substantial amount of one or 

more oxygenates, generally an alcohol or 

ether. 

-1 .. . "Vehicle pollution 

management division NPMD)" means 

the d~vision within the department responsible for the administration of 20.1 1.102 

NMAC. 

m 

son" means the annual ~eriod beelwlne he . . t 

first dav of November and endine at the 

.conclusion of the last dav of Februarv of t& 

~mmed~atelv followiw 

[I 1/10/93; 20.11.102.7 NMAC - Rn, 20 

NMAC 11.102.1.7, 10/1/02; A, 9/1/04; A 

12/11/05] 

20.11.1 02.9 SAVINGS CLAUSE: 

Any amendment of 20.1 1.102 NMAC that 

is filed with the state records center shall 

not affect actions pending for violation of a 

city or county ordinance [M 

-1, QI prior versions of 20.1 1.102 NMAC [- 

-1. Prosecution for a prior violation shall be governed and prosecuted 

under the statute, ordinance, regulation, part 

or [- in effect at 

the time the violation was committed. 

[11/10/93. . .12/1/95; 20.11.102.9 NMAC - 

Rn, 20 NMAC 11.102.1.9, 10/1/02; A, 1 9/1/04; A 12/11R5] 

20.11.1 02.10 SEVERABILITY If 

any section, [geragfaePrl subsectlence. phrase, clause, or word of [- 

20.1 I. 102 NMAC or any federal standards 

incorporated herein is for any reason held to 

be unconstitutional or otherwise invalid by 

any court, the decision shall not affect the 

p 

validity of the remaining provisions of [hi+ 

20.1 1.102 

NMAC. 

[11/10/93. . .12/1/95; 20.11.102.10 NMAC 

- Rn, 20 NMAC 11.102.1.10, 10/1/02; A 

1211 1/05] 

20.11.102.11 DOCUMENTS: 

Documents incorporated and cited in [&it+ 

Pefc] 20.11.102 NMAC may be viewed at 

the Albuquerque environmental health 

department, 400 Marquette NW, 

Albuquerque, NM, 87 102. 

[12/1/95; 20.11.102.11 NMAC - Rn, 20 

NMAC 11.102.1.11 & A, 10/1/02; A, 

9/1/04; A 1211 1/05] 

20.11.102.12 OXYGENATED 

FUELS: Purine the winter ~ollution seamoxygenated fuels shall be used in all 

gasoline powered motor vehicles as a wintertime air pollution control strategy for 

reduction of carbon monoxide emissions in 

Bemalillo county. 

A. Annual program 

duration and minimum oxygen content: 

(1) 

-1 p- pollution season. no person shall supply or 

sell any gasoline motor fuel intended as a 

final product for fueling of motor vehiclcs 

within Bemalillo county, or sell at retail, or 
/ November 30,2005 

less than 1.5 ~ercent oxveen bv weight 

-..li.-e-I--at violations for spmplsr below 2.5 

cent we en bv weleht shal 1 result in a 

-----I.iev~ ' '6 order which wil : 

remain in effect until the violation is torrected as determined bv the de~ - artment. 

A A$f di 

sale" order will result in the director of 

deDartrnente order and 

imoosing a penaltv of not less than $500 

and not more than $1 5. 00 ~er dav as 

authorized by the New Mexico A, . . 

r Oual~ 

Act. NMSA 1978.74-2-12.B. 

(2) The department may enter into 

[w& agreement, as appropriate, with 

any agency of the state or other local government [e&h,] to assist in the 

monitoring, compliance, and enforcement 

of 20.1 1 .I02 NMAC [v 

-.I 

Q 

. . 

. . fi .. .. 

I 

IW El. Suspension of program due to oxygenate shortage: Should 

extreme and unusual circumstances occur in 

the marketplace preventing the blending of 

oxygenates at the levels [- 

-1 required bv 20 . 11 . 102 NMAC, the 

manager may take the necessary steps as a 

teoutletsp0rdQ' emergency measure to relax or 

suspend [thh+p~b] 20.1 1 .I02 NMAC. The 

manager shall inform the members of the 

board of such action taken within seven 

days of this Occurrence. At its next regular 

meeting, or at a special meeting if so called, 

the board shall review the manager's action. 

Iq 1. Program review: By 

the regular meeting of the board in July of 

each program year, the department shall 

provide a report to the board reviewing the 

results of the program, which shall include 

an analysis of costs and benefits to the consumer, investigations of complaints, cornpliance and quality assurance activities, and 

other findings and recommendations. 

[I 1/10/93, 12/1/95; 20.1 1.102.12 NMAC - 

Rn, 20 NMAC 11.102.1.12 & Repealed, 

10/1/02; Rn, 20 NMAC 11.102.11.1, 

1011 102; A, 99/1/04; A 1211 1/05] 

20.11.102.13 - I0 

* . . 

I;.-:. 1 

) 

. .. 

. . . . 

. .. 

1272 New Mexico 

sell to a private or government fleet for con- 

~umption; or introduce such fuels into a 

motor vehicle in Bernalillo county unless 

the fuel contains a minimum 2.7 percent 

oxygen content by weight, as 

required pursuant to 20.1 1.102.14 NMAC. 

(2) ne department shall establish 

the blending tolerance for oxygenated fuels. 

(3) The board, after considering 

EPA guidelines [-I and 

ap~licable information, reports, data, and 

testimony, [MI make a determination by July of each year whether the OxYgenate levels should be modified or remain 

the same. 

(4) Oxygenates approved for use 

in this program shall be blended Per unit 

volume of gasoline motor fuel, and blended 

up to [e] I0 percent by volume for ethanol, 

[-.-'I-------' 

at the volume for any other gasoline motor 

fuel additive which has been issued a waiver by the EPA pursuant to the Clean Air Act, 

Section 21 I (9 (4). 

(5) NO gasoline motor fuel blended with methanol and intended as a final 

product for fueling of motor vehicles shall 

be sold at retail or to a private or government fleet within Bemalillo county. 

& lnventorv: Anv supplier who ~rovides gasoline or OxVeenate 

blends nt i 

~eister with VPMD and orovide the names, 

addresses and telephone numbers of all iobbbfleet 

wonlied. The inventorv shall be submitted 

10 VPMD bv November 30. 2005 and bv 

October 3 1 each vear thereafter. 

C Reeord_kecDing: 

purine the winter pollution season. any 

~uo~lier ~rovidine gasoline in Bemalillo 

countv must document whether each batch 

avenated. the oxveen Content 

bv volume. This documentation must 

accomoanv each shipment and be kept on 

p 

file b; the retailer or fleet facility for the 

1qD. Labeling and notice to 

the public: 

(1) All oxygenated motor fuel 

sold shall be && labeled at each dispensing pump identifying the type of . OXY- . 

genate, [- 

. . 

-1 with labels 

provided bv the department. 

(2) All retail gasoline [-I 

facilities shall keep readily available all 

pamphlets, brochures, fact sheets, and other 

written information provided to them by the 

department for information and dissemination to the public. 

Register / Volume XVI, Number 22 

[r?\ 

6 

, 

-1 

& Sampling: A minimum of 20 oercent of all retail stations and 

10 percent of all fleet fueline facilities wiu 

be sampled. Ihe deoartrnent. uwn presentation of proper identification. shall be 

allowed to enter a facll . . ~tv durine reasonable 

tj 

$$_deemed 

f or or eri off 

facilitv. 

the filler of the underground ~asoline storage tanks as outlined in 40 CFR Part 80, 

AAI 

directlv from the undernound tank. the 

sample may be taken from the gas Duma 

ri I. 

E ,AnaIvsis: The department shall make a eood faith effort to analvze the samoles as soon as oossible. 

Samples shall be analvzed in the field or at 

the VPMD laboratorv on the same dav the 

$a 5 rfa 

ethanol. MTBE. or other oxveenates. Any 

sam~le results contested bv a distributor or 

station will be sent bv the de~artmento the 

fuelinefacillti_esa 

R\IMDA) petroleum standards bureau for 

ed~ 

gnalvsis. Samole analvsis shall be conductfor 

or 

eauivalent standard. 

1. Enforcement: 

"-. 

1 

(1) [Tfi . . 

1 

. . 

. . .I 

gen bv weight shall be considered in compp .O 

percent but less than 2.5 ~ercent oxveen by 

weight will result in a notice of warnine and 

must be corrected at the time of the nex 

fuel deliven Sameles containing at leisf 

1.5 percent but less than 2.0 oercent oxveen 

bv weieht will result in notjce of violation 

[[ 

hours. The NOV will cite the reason(s) for 

non-comeliance and will include the sample 

dm 

ccnl oxvgen bv weieht. Sarn~les containing 
New Mexico Register I Volume XVI, Number 22 1 November 30,2005 1273 

[16.34.2.11 NMAC - N/E, 11-10-051 

16.34.2.12 EMERGENCY 

LIC ENSE TERMINATION 

A encv l~cense 

shall terminate uDon the followine circumstances: 

(1) the issuance of a Dermanent 

license under 16.34.2.8. 16.37.5.8- 

and 16.34.6.8 NMAC: 

(2) Droof that the emereew license holder has eneaeed in fraud deceit. 

mlsrepresentation in rocu urine or attemotine to Droc ure a hcense un-. 

E . . rmlnatlon of an 

emerPenc?' license shall not preclude a~plisation for merit ~~ 

[16.34.2.12 NMAC - N/E, 11-10-051 

NEW MEXICO GAMING 

CONTROL BOARD 

This is an amendment to 15.1.13 NMAC, 

Sections 3, 8, 9, 10, 1 1, 12 and 13 effective 

303 2005. 

15.1'13'3 STATUTORY 

AUTHORITY: Section 60-2E-7(B)(3) of 

the Gaming Control Act authorizes the 

board to develop, adopt and promulgate all 

regulations necessary to implement and 

administer the provisions of the Gaming 

Control Act. Section 60-2E-8(C)(I) directs 

the board to adopt regulations prescribing 

the method and form of application to be 

filed by an applicant under the Gaming 

Control Act. Pursuant to Section 60-2E14(F), all licenses issued to or for manufacturers, distributors, gaming operators, and 

gaming machines and all work permits 

[-I be renewed annually. 

[12/31/98; 15.1.13.3 NMAC - Rn, 15 

NMAC 1.13.3,3/31/00; A, 11/30/05] 

15.1.13.8 ANNUAL RENEWAL 

OF LICENSE OR WORK PERMIT: 

A. Licenses issued under 

the act, other than 1g.W 

ine machine licen~ons of 

findings of suitability, expire [e&eeed~ 

-1 Qne vear from the date of the 

Jssuance of the license, and are subject to 

annual renewal in accordance with the act 

and this rule. 

B. A complete renewal 

application and payment of all applicable 

fees for renewal of a license [-]shall be 

led, with ,the board [- . . GI Wl 

-. The renewal application 

1-1 be submitted on forms provided by the board. gamin^ operator licensees. 

sr 

with the renewal a~olication. 

Br Rn, 20 NMAC 11.102.11.3, 1011102; A, 

9/1/04; A 1 211 1/05] 

NEW MEXICO BOARD OF 

* BARBERS AND 

7 

1 

G - COSMETOLOGISTS 

This is an emergency amendment to 16.34.2 

NMAC, Sections 11 and 12, effective 

* 

November 10,2005. 

---I-,..-.l-L'-1 

[11/10/93; 20.11.102.13 NMAC - Rn, 20 

NMAC 1 1.1 02.11.2, 1 0/1/02; A, 9/1/04; 

Repealed, 1211 1/05] 

20.11.102.14 C ON EN Y 

1- MEASURE: . . I Ar 

b .. s, 

~ . . 

. . 

pe 

16.34.2.11 PROVIS~ONS FOE 

EMERGENCY LICENSURE 

A Barbers. cometologists. manicurists/~edicurists. estheticiaa 

~lectrologists. and instructors currently 

licensed and in good standing. or otherwise 

meeting the reauirements for New Mexic~ 

licensure in a state in which a federal disaster has been declared. mav be licensed in 

New Mexico during the four months following the declared disaster upon satisfving 

the followine requirements: 

U) receipt bv the board of a cornpleted ap~lication which has been s& . . and notarized and wh~ch 1s accompanied by 

proof of identity, which may include a CODY 

fa drivers license. oass~ort or other 

ydentification issueb bi a eovernm% 

efer to 16.34.23 NMAC, 

eneral orocedures. 16 34.5 8 

AC. ?enera1 licensure reauirements; 

d 16.34.6.8 NMAC. recimocitv 

(3) other reauired veiification 

will be that the board office will contact thn 

a~olicant's ori r licens'ng I boar d bv email 

. . Br 

,, . '^..^. 

-1 If 

carbon monoxide levels in Bernalillo county exceed 85 percent of the federal ambient 

carbon monoxide standards, then the minimum oxygen content by weight of 2.7 percent required in Paragraph (11, of 

Subsection A of 20.1 1.102.12 NMAC, will 

be increased to 3.0 percent 

beginning N~vember 1 the immediately 

following winter pollution season and continuing through the last day of the immediately following February and resuming 

every winter pollution season (November 

through February) thereafter. 

[I 1/10/93.. .6/15/95; 20.1 1.102.14 NMAC - 

or teliDhOne for co~firmation~of wha; 

is provided bv the applicant. 

a ~h~ board waive 

the followinr requirements for licensure: 

[I ) ap~lication fees; 

12) specific forms or documentstion reailired. on an individual case by case 

basis. under 16.34.2.8. 16.34.5.8. ad 

16.34.6.8 NMAC if the a~~licant is unable 

to obtain documentation from the federal 

declared disaster areas, 

- C. hi^^ in this section 

for licensure contained in 16.34.2.8, 

16.34.5.8 and 16.34.6.8 NMAC. 

- D. icenses issued under 

(the emergency Drokision) shall be issued 

date ,f issuance. unless the board or an 

agent of the board aDDroves a renewal aDDli- AoDllcatlon cation, 

date of issue to avoid late renewal fees-The 

boardht toreauest additionlo recommendation forms and work exDerilicense renewal, 
ATTACHMENT E 

Hearing Exhibits 
Oxygenated Fuels 

Proposed Amendments to 20.1 1 .I 02 NMAC 

Title 20 Environmental Protection 

Chapter 11 Albuquerque-Bernalillo County Air Quality Control Board 

Part 102 Oxygenated Fuels 

NMAC New Mexico Administrative Code 
Exhibit Contents: 

Exhibit I: Public Review Draft 812712005 of 20.1 1 .I02 Proposed Revision 

Exhibit 2: New Mexico Register Vol. XVI, Number 15, 811512005 Notice of 

Rulemaking and Proposed Rules. 

Exhibit 3: Albuquerque Journal 812712005 Legal Notice. 

Exhibit 4: Floor Amendments to Public Review Draft 8/27/2005 of 20.1 1 .I02 

Proposed Amendments. 

Exhibit 5: Public Comments Received as of 101512005. 

Exhibit 6: List of People Notified by E-mail of Proposed Regulation Revision 

to20.11.102 NMAC. 
TITLE 20 ENVIRONMENTAL PROTECTION 

EXHIBIT 

CHAPTER 11 ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD 

El 

PART 102 OXYGENATED FUELS 

20.1 1.102.1 ISSUING AGENCY: Albuquerque-Bemalillo County Air Quality Control Board, c/o 

Environmental Health Department, P.O. Box 1293, Albuquerque, NM 87103. Telephone: (505) 768-2600. 

[11/1/89. . .12/1/95; 20.1 1.102.1 NMAC - Rn, 20 NMAC 11.102.1.1, 10/1/02; A, 9/1/04] 

20.11.102.2 SCOPE: [Thk-kwt] 20.11.102 NMAC is applicable to gasoline motor fuel sold retail or 

wholesale or supplied for use in motor vehicles in Bemalillo County except Indian lands. 

[12/1/95; 20.1 1.102.2 NMAC - Rn, 20 NMAC 11.102.1.2, 10/1/02; A 11/18/05] 

20.1 1.102.3 STATUTORY AUTHORITY: [Thk-kwt] 20.1 1.102 NMAC is adopted pursuant to the authority 

provided in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4,74-2-5.C; the Joint Air Quality 

Control Board Ordinance, Bemalillo County Ordinance 94-5 Sections 3 and 4; and the Joint Air Quality Control 

Board Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5- 1-3 and 9-5- 1-4. 

[11/1/89. . .12/1/95; 20.1 1.102.3 NMAC - Rn, 20 NMAC 11.102.1.3, 10/1/02; A, 9/1/04; A 11/18/05] 

20.1 1.102.4 DURATION: Permanent. 

[12/1/95; 20.11.102.4 NMAC - Rn, 20 NMAC 11.102.1.4, 10/1/02] 

20.11.102.5 EFFECTIVE DATE: December 1, 1995, unless a later date is cited at the end of a section. 

[12/1/95; 20.11.102.5 NMAC-Rn, 20NMAC 11.102.1.5 &A, 10/1/02] 

20.1 1.102.6 OBJECTIVE: To provide for the use of oxygenated fuels in Bemalillo county to reduce tail pipe 

emissions from gasoline powered motor vehicles and to establish a contingency measure in the event that monitored 

carbon monoxide levels in Bemalillo county exceed 85 percent of the federal ambient carbon monoxide standards. 

[6/15/95. . .12/1/95; 20.1 1.102.6 NMAC - Rn, 20NMAC 11.102.1.6, 10/1/02; A, 9/1/04] 

20.1 1.102.7 DEFINITIONS: In addition to the definitions in 20.1 1.102.7 NMAC the definitions in 20.1 1.1 

NMAC apply unless there is a conflict between definitions, in which case the definition in [thk-PW] 20.1 1.102.7 

NMAC shall govern. 

A. "Department" means the Albuquerque environmental health department or its successor agency. 

B. "Ethanol" means a colorless volatile flammable alcohol with the molecular composition of 

[€&I&] CEJCHIOH. 

C. "Facility or facilities" means a place or places of business which sells or supplies for wholesale 

or retail purposes gasoline motor fuel, including fuel-transporting businesses. 

D. "Gasoline motor fuels" means [-I any flammable liquid used primarily as 

fuel for the propulsion of motor vehicles, but does not include diesel engine fuel, kerosene, liquefied petroleum gas, 

natural gas and products specially prepared and sold for use in the turbo-prop or jet-type engines. 

E. "Manager" means the manager of the vehicle pollution management division (VPMD). 

F. "MTBE" means methyl tertiary butyl ether. 

G. "Methanol" means a light volatile flammable poisonous liquid alcohol CH30H formed by the 

destructive distillation of wood or manufactured from natural gas or coal, and used in combination with heavier cosolvent alcohols as an octane enhancer for addition to gasoline. 

H. "Motor vehicle" means any vehicle propelled by a spark ignited internal combustion engine 

which is designed primarily for travel on public highways and which is generally and commonly used to transport 

persons and property over the public highways. 

I. "Oxygen content by weight" means a measurement of the percentage of oxygen in an 

oxygenated fuel. 

J. "Oxygenate" means any oxygen-containing ashless, organic compound which may be used as a 

fuel or as a gasoline blending component and which was approved as a blending agent under the provisions of a 

waiver issued by the U.S. environmental protection agency pursuant to the Clean Air Act, Section 21 1 (f) (4). 

K. "Oxygenated fuel" means a motor vehicle fuel blend, whether leaded or unleaded, consisting 

primarily of gasoline and a substantial amount of one or more oxygenates, generally an alcohol or ether. 

m20.11.102 NMAC Public Review Draft 08/27/05 1 
L. [

. . 

[I .. . "Vehicle Pollution Manapement 

Division (VPMD)" means the division within the department responsible for the administration of 20.1 1.102 

NMAC. 

M. "Winter Pollution Season" means the annual period beginning the first day of November and 

ending at the conclusion of the last day of February in the subsequent year. 

[11/10/93; 20.1 1.102.7 NMAC - Rn, 20 NMAC 1 1.102.1.7, 10/1/02; A, 9/1/04; A 11/18/05] 

20.1 1.102.8 VARIANCES: [Reserved] 

[12/1/95; 20.1 1.102.8 NMAC - Rn, 20 NMAC 11.102.8, 10/1/02] 

20.11.102.9 SAVINGS CLAUSE: Any amendment of 20.1 1.102 NMAC that is filed with the state records 

-1, 

center shall not affect 

or prior 

actions pending for 

versions of 20.1 1 .lo2 

violation of a 

NMAC [-I. 

city or county ordinance [w 

Prosecution for a prior violation 

shall be governed and prosecuted under the statute, ordinance, regulation, part or [-I permit in 

effect at the time the violation was committed. 

[11/10/93. . .12/1/95; 20.11.102.9 NMAC - Rn, 20 NMAC 11.102.1.9, 10/1/02; A, 9/1/04; A 11/18/05] 

20.11.102.10 SEVERABILITY: If any section, [pwtgqh] subsection, sentence, phrase, clause, or word of 

[tJ+k+R&] 20.1 1.102 NMAC or any federal standards incorporated herein is for any reason held to be 

unconstitutional or otherwise invalid by any court, the decision shall not affect the validity of the remaining 

provisions of ['";.I 20.1 1.102 NMAC. 

[11/10/93.. .12/1/95; 20.11.102.10NMAC-Rn,20NMAC 11.102.1.10, 10/1/02;A 11/18/05] 

20.1 1.102.1 1 DOCUMENTS: Documents incorporated and cited in [th-R&] 20.1 1.102 NMAC may be 

viewed at the Albuquerque environmental health department, 400 Marquette NW, Albuquerque, NM, 87 102. 

[12/1/95; 20.11.102.1 1 NMAC - Rn, 20 NMAC 11.102.1.1 1 & A, 10/1/02; A, 9/1/04; A 11/18/05] 

20.11.102.12 OXYGENATED FUELS: During the winter pollution season, oxygenated fuels shall be used in 

all gasoline powered motor vehicles as a wintertime air pollution control strategy for reduction of carbon monoxide 

emissions in Bernalillo county. 

A. Annual program duration and minimum oxygen content: 

(1) [[

During the winter vollution season, no person shall supply or sell any gasoline motor fuel intended as a final product 

for fueling of motor vehicles within Bernalillo county, or sell at retail, or sell to a private or government fleet for 

consumption; or introduce such fuels into a motor vehicle in Bemalillo county unless the fuel contains a minimum 

2.7 percent oxygen content by weight, except as required pursuant to 20.1 1.102.14 NMAC. 

(2) The department shall establish the blending tolerance for oxygenated fuels. 

(3) The board, after considering EPA guidelines [+H+vda%] and other applicable information, 

reports, data, and testimony, [W] make a determination by July of each year whether the oxygenate levels 

should be modified or remain the same. 

(4) Oxygenates approved for use in this program shall be blended per unit volume of gasoline motor 

fuel, and blended up to a 10 percent by volume for ethanol, [o] or at the 

volume for any other gasoline motor fuel additive which has been issued a waiver by the EPA pursuant to the Clean 

Air Act, Section 21 1 (f) (4). 

(5) No gasoline motor fuel blended with methanol and intended as a final product for fueling of 

motor vehicles shall be sold at retail or to a private or government fleet within Bernalillo county. 

B. Inventorv: Any supplier who provides gasoline or oxygenate blends in bulk in Bernalillo countv 

must register with VPMD and provide the names. addresses and telephone numbers of all jobbers. fleet fueling 

facilities and retail outlets supplied. The inventorv shall be submitted to VPMD by November 30. 2005 and by 

October 3 1 each year thereafter. 

C. record keep in^: During the winter pollution season. anv supplier providing gasoline in Bernalillo 

county must document whether each batch is oxygenated, the oxygen content by weight and the oxygenate type and 

percent by volume. This documentation must accompany each shipment and be kept on file bv the retailer or fleet 

facility. 

[BID. Labeling and notice to the public: 

20.11.102 NMAC Public Review Draft 08/27/05 
(1) All oxygenated motor fuel sold shall be clearly labeled at each dispensing pump identifying the . . type of oxygenate, [@ 

Q] with labels provided bv the 

department. 

(2) All retail gasoline [&I facilities shall keep readily available all pamphlets, brochures, fact 

sheets, and other written information provided to them by the department for information and dissemination to the 

public. 

[

. . 01 

E. Sam~linp: A minimum of 20 percent of all retail stations and 10 percent of all fleet fueling 

facilities will be sampled. The department, upon presentation of proper identification. shall be allowed to enter a 

facilitv during reasonable times. The department may collect those samples deemed appropriate after paying for or 

offering to pay for the samples at any facility. Samples will be collected thou& the filler of the underground 

gasoline storage tanks as outlined in 40 CFR Part 80. Appendix D. If a sample can not be taken directly from the 

underground tank. the sample mav be taken from the gas pump nozzle and labeled accordingly. 

F. Analysis: The department shall make every effort to analvze the samples as soon as possible. 

Samples shall be analvzed in the field or at the VPMD laboratory on the same dav the samples are collected, 

circumstances permitting. Samples will be analyzed for ethanol, MTBE. or other oxygenates. Any sample results 

contested by a distributor or station will be sent bv the department to the New Mexico Department of Agriculture 

(NMDA) Petroleum Standards Bureau for analvsis. All samples will be analyzed in accordance with either of two 

methods recognized by the American Society for Testin? and Materials (ASTM). ASTM D-5845 is a spectroscopic 

method currently used at VPMD. ASTM D-48 15 is a standard test method for the determination of C 1 and C4 

alcohols and MTBE in gasoline by gas chromatographv used bv the NMDA Petroleum Standards Bureau. 

[&I G. Enforcement: 

(1) 11 

. . 1.1 

Samples containing at least 2.5 percent oxygen bv weight shall be considered in compliance. Samples containin? at 

least 2.0 percent but less than 2.5 percent oxygen by weight will result in a notice of warning and must be corrected 

at the time of the next fuel delivery. Samples containing at least 1.5 percent but less than 2.0 percent oxygen bv 

weight will result in notice of violation CNOV) and must be corrected within 24 hours. The NOV will cite the 

reasonh) for non-compliance and will include the sample date and the results of the analvsis in percent oxvgen bv 

weight. Samples containing less that 1.5 percent oxygen by weight or repeat violations for samples below 2.5 

percent oxygen by weight shall result in an immediate "Stop Sale" order which will remain in effect until the 

violation is corrected as determined bv the department. Any fuel dispensed in violation of a "Stop Sale" order will 

result in the director of the department issuing a compliance order and imposing a penalty of not less than $500 and 

not more than $15,000 per day as authorized bv the New Mexico Air Quality Act. NMSA 1978,74-2-12.B. 

(2) The department may enter into [& an agreement, as appropriate, with any agency of the state or 

other local government [ett,] & to assist in the monitoring, compliance, and enforcement of 20.1 1.102 

NMAC [-.I 

1 LAA 

[Dl H. Suspension of program due to oxygenate shortage: Should extreme and unusual circumstances 

occur in the marketplace preventing the blending of oxygenates at the levels [-I reauired bv 

20.1 1.102 NMAC, the manager may take the necessary steps as a temporary emergency measure to relax or suspend 

[-I 20.1 1 .lo2 NMAC. The manager shall inform the members of the board of such action taken within seven 

days of this occurrence. At its next regular meeting, or at a special meeting if so called, the board shall review the 

manager's action. 

[Kl I. Program review: By the regular meeting of the board in July of each program year, the 

department shall provide a report to the board reviewing the results of the program, which shall include an analysis 

of costs and benefits to the consumer, investigations of complaints, compliance and quality assurance activities, and 

other findings and recommendations. 

I 

20.11.102 NMAC Public Review Draft 08/27/05 
[11/10/93, 12/1/95; 20.1 1.102.12 NMAC - Rn, 20 NMAC 11.102.1.12 & Repealed, 10/1/02; Rn, 20 NMAC 

11.102.11.1, 10/1/02; A, 9/1/04; A 11/18/05] 

20.11.102.13 [-TTvT.S PP 

. .. Vl 

Reserved 

[11/10/93; 20.1 1.102.13 NMAC - Rn, 20 NMAC 11.102.11.2, 10/1/02; A, 9/1/04; Repealed, 1 1/18/05] 

20.1 1.102.14 CONTINGENCY MEASURES: 

r-T..l.r-- . . A. 

-1 If Bernalillo county violates the national ambient air quality standard for carbon 

monoxide the minimum oxygen content by weight of 2.7 percent required by Paragraph (1). of Subsection A of 

20.1 1.102.12 NMAC, will be increased to 3.0 percent immediately. 

B. 11 . t] If monitored carbon 

monoxide levels in Bernalillo county exceed 85 percent of the federal ambient carbon monoxide standards, then the 

minimum oxygen content by weight of 2.7 percent required in Paragraph (1), of Subsection A of 20.1 1.102.12 

NMAC, will be increased to 3.0 percent [4%~4kd] beginning November 1 of the immediately following winter 

pollution season and continuing through the last day of the immediately following February and resuming every 

winter pollution season (November through February) thereafter. 

[11/10/93.. .6/15/95; 20.1 1.102.14 NMAC - Rn, 20 NMAC 11.102.11.3, 10/1/02; A, 9/1/04; A 11/18/05] 

HISTORY OF 20.1 1.102 NMAC: 

Pre-NMAC History: The material in this part was derived from that previously filed with the commission of 

public records - state records center and archives. 

Regulation No. 35, Alternative Fuels, 11/1/89; 

Regulation No. 35, Alternative Fuels, 6/25/92; 

Regulation No. 35, Alternative Fuels, 11/10/93; 

Regulation No. 35, Alternative Fuels, 611 5/95. 

History of Repealed Material: [20.11.102.13 NMAC] 

Other History: Regulation No. 35, Alternative Fuels, filed 6/15/95 was renumbered and reformatted into first 

version of the New Mexico Administrative Code as 20 NMAC 1 1.102, Oxygenated Fuels, filed 10/27/95. 

20 NMAC 11.102, Oxygenated Fuels, filed 10127195 was renumbered, reformatted, amended and replaced by 

20.1 1.102 NMAC, Oxygenated Fuels, effective 10/1/02. 

20.11.102 NMAC Public Review Draft 08/27/05 
New Mexico Commission of Public Record 

Administrative Law Division 

1205 Camino Carlos Rey 

Santa Fe, NM 87507 

I certify that the agency noted below has published legal notices or rules in the New Mexico 

Register, and that payment has been assessed by invoice for said legal notice or publication, 

which appeared on the date and in the volume and issue number noted below. 

Date of Publication: 8/15/2005 Agency: 

Volume: XVI Issue # : 15 ABQ / Bemalillo Cty Air Quality Control Board 

Invoice # : NMR-2006- 32 Contact: Neal Butt 

PO Box 1293 

Amount: $28.50 Albuquerque, NM 87 103- 

Description: 

Notice Notice of Hearing and Regular Meeting 

Date: 8/19/2005 

New Mexico Commission of Public Records 

Notice to Publishing Agency 

Enclosed are your agency's proof copies of the legal notices or rules which were published in the New 

Mexico Register. These document the fact that your Notice of Rulemaking, Proposed Rule, or 

Adopted Rule has been published in the New Mexico Register. 
New Mexico Register / Volume XVI, Number 15 / August 15, 2005 809 

Notices of Rulemaking and Proposed Rules 

BOARD 

ALBUQUERQUE-BERNALILLO 

COUNTY AIR QUALITY CONTROL 

BOARD 

NOTICE OF HEARING AND 

REGULAR MEETING 

On October 12, 2005, at 5:15 pm, the 

Albuquerque-~emalillo county~ir Quality 

Board (Board) will hold a 

bined public hearing in the vincent E. 

~~i~~~ chambers located in the basement 

level of the ~lb~~~~~~~~-B~~~lill~ county 

G~~~~~~~ center, 400 M~~~~~~~

N~, Albuquerque, NM. ~h~ hearing will 

address: 

Proposal to amend 20.11.102 NMAC, 

a (part 102) as described 

~~toF~!~pomte the complete and 

amended 20.11.102 N~C into the N~~ 

Mexico State Implementation Plan for air 

quality (SIP). 

The purpose of the Part 102 combined hearing is to receive testimony on proposed 

changes to 20. 102 -c, 

M, and also to receive testimony on 

placing the amended Part 102 into the SIP. 

The Proposed amendments to Part 102 

include: 

* Deletion of an obsolete 

procedures manual and references thereto. 

This will necessitate the direct incorporation of language into the regulation regardine registration, recordkeeping and labeling 

requirements, sampling and analysis procedures, and enforcement provisions. 

* Sampling and analysis 

procedures will be amended to replace references to specific equipment with references to ASTM D-4g15 and ASTM D-5845 

test methods. 

* Proposed enforcement 

provision amendments include deletion of 

an unenforceable fine schedule to be 

replaced with a graduated corrective action 

and closure schedule based on level of noncompliance. 

Following the combined hearing, the Board 

will hold its regular monthly meeting during 

which the Board is expected to consider 

adopting the proposed amendments to 

20.11.102 NMAC, and 

incoporating the c~~eat~dFU~nded 

regulation into the SIP. 

The Air Quality Control Board is the federNEW MEXICO 

COAL SURFACE MINING 

COMMISSION 

ALBUQUERQUEBERNfiILLO COUNTY 

AIR QUALITY CONTROL 

ally delegated air quality authority for 

Albuquerque and Bernalillo County. Local 

delegation authorizes the Board to administer and enforce the Clean Air ~ct and the 

New Mexico Air Quality Control Act, and 

to require local air pollution sources to comply with air quality standards and regulaHearings and meetings of the Board are 

open to the public and all interested persons 

are encouraged to participate. All persons 

who wish to testify regarding the subject of 

the hearing may do so at the hearing and 

will be given a reasonable opportunity to 

submit relevant evidence, data, views and 

arguments, orally or in writing, to introduce 

exhibits and to examine witnesses in accordance with the Joint Air Quality Control 

Board Ordinances, Section 9-5-1-6 ROA 

1994 and Bemalillo County Ordinance 94- 

5, Section 6. 

Anyone intending to present technical testimony is asked to submit a written notice of 

intent before 5:00 pm on Wednesday 

October 5, 2005 to: Attn: October Hearing 

Record, Mr. Neal Butt, Albuquerque 

Environmental Health Department, P.O. 

BOX 1293, Albuquerque, NM 87103, or in 

Person in Room 3023, 400 Muquette 

Avenue NW. The notice of intent shall 

identify the person's name, address and 

affiliation. 

In addition, written comments to be incorporated into the public record should be 

received at the above P.O. Box, or 

Environmental Health Department ofice, 

before 5:00 pm on October 5, 2005. The 

comments shall include the name, address 

and affiliation of the individual or organization submitting the statement. Written comments may also be submitted electronically 

to m@.cabqg~11 and shall include the 

required name, address and 

mation. Interested persons may obtain a 

copy of the proposed regulation at the 

Environmental Health Department Office, 

or by contacting ~r. Neal ~utt electronical- 

'y at pbutt@caba.eoy Or by phone at 

768-2660. 

NOTICE FOR PERSON WITH DISABILITIES: If you have a disability and/or 

require special assistance please call (505) 

768-2600 Poice] and assistance 

will be made available to you to review any 

public meeting documents, including agenand minutes. users call the New 

Mexico Relay at 1-800-659-833 1 and specia1 assistance will be made available to you 

to review any public meeting documents, 

including agendas and minutes. 

- 

STATE OF NEW MEXICO 

COAL SURFACE MINING 

COMMISSION 

SANTA FE, NEW MEXICO 

The Coal Surface Mining Commission will 

conduct a public hearing at 1:00 P.M. on 

September 9 2005, in Porter Hall at 1220 

South St. Francis Drive, Santa Fe, New 

Mexico, to consider the adoption of amendments to 19.8 11 and 12 NMAC. The pro- 

posed amendments will make changes to 

the administrative and judicial review 

process for permitting actions, notices of 

violation, cessation orders and show cause ,

orders. The proposed amendments will also 

clarify the procedures for petitioning for 

award of legal costs and attorneys' fees. 

Minor corrections and style adjustments to 

conform with the requirements of the New 

Mexico Administrative Code are also proposed. The Commission may take action on 

the proposed amendments at the close of the 

hearing. 

Copies of the text of the proposed amend- 

ments are available from Commission Clerk 

James O'Hara at (505)476-3413 or from 

the Mining and Minerals Division web site 

at 

bttD://www.-ininglcsm 

cJ19.8-2005amend.pdf. If you are an individual with a disability who is in need of a 

reader, amplifier, qualified sign language 

interpreter, or any other form of auxiliary 

aid or service to attend or participate in the 

hearing, please contact Mr. O'Hara at (505)- 

476-3413 as soon as possible. 

Bill Brancard, Director 

Mining and Minerals Division I

NEW MEXICO GAME 

COMMISSION I 

STATE GAME 

COMMISSION 

PUBLIC MEETING AND I 

RULEMAKING NOTICE 

On Mo~~Y, Au~t 22. 2005, beginning at9:00 a.m. at the State Capitol Building, 490 

Old Santa Fe Trail, Third Floor - Room 322, 

Fe9 NM 87501, the State Game 

Commission will meet in Public Session to

consider action as appropriate on the following: Consent Agenda for Revocation 01 
0 

STATE OF NEW MEXICO 
I Cify of Albuquerque EXHIBIT 

- Environmental Health Department 

Vehicle Pollution Management Division 

1500 Broadway NE Albuquerque, New Mexico 87102 

- 

Vehicle Pollution Management Division 

PROPOSED FLOOR AMENDMENTS 

to 

PUBLIC REVIEW DRAFT (PRD) 8/27/05 

. . . . 1. One 1.line 15, b-np: with the at~on to "sections, 74 - 2 - 5.74 - 2 - 5.C delete C 77 66 77 

nsert "B" in lieu thereof, chanyes throu 

PRD 8/27/05 edit: 

20.1 1.102.3 STATUTORY AUTHORITY: [%i&a&] 20.1 1.102 NMAC is adopted pursuant to the authority 

provided in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4,74-2-5.C; the Joint Air Quality 

Control Board Ordinance, Bernalillo County Ordinance 94-5 Sections 3 and 4; and the Joint Air Quality Control 

Board Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5-1-3 and 9-5-1-4. 

Proposed floor amendment: 

20.1 1.102.3 STATUTORY AUTHORITY: [Tl&-P&] 20.1 1.102 NMAC is adopted pursuant to the authority 

provided in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4,74-2-5.6 B; the Joint Air 

Quality Control Board Ordinance, Bernalillo County Ordinance 94-5 Sections 3 4 and 4 5; and the Joint Air 

Quality Control Board Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5-14 4 and 9-5-1-4 5. 

2. On paye 1, line 37, correct the a? . . 

PRD 8/27/05 edit: 

C. "Facility or facilities" means a place or places of business which sells or supplies for wholesale 

Proposed floor amendment: 

C. "Facility"r 'facilities" means a place or places of business which sells or supplies for wholesale 

3. maye 2, line 6, followm.. 66 February 77 , delete "in the subsequent" d insert the fow . . 

lieu thereof: "of the immediately following": 

PRD 8/27/05 edit: 

M. "Winter Pollution Season" means the annual period beginning the first day of November and ending 

at the conclusion of the last day of February in the subsequent year. 

I EXHIBIT 4 1 
Proposed floor amendment: 

M. "Winter Pollution Season" means the annual period beginning the first day of November and ending 

at the conclusion of the last dav of Februarv of the immediately following vear. 

4. On paFe 2, line 43, after "and blended up to", delete the article "a": 

PRD 8/27/05 edit: 

fuel, and blended up to a 10 percent by volume for ethanol, [[I or at the 

Proposed floor amendment: 

fuel, and blended up to a 10 percent by volume for ethanol, [[I or at the 

5. On page 2. line 55, after "facilitv " insert "for the duration of the winter pollution season": 

PRD 8/27/05 edit: 

facilitv. 

Proposed floor amendment: 

facilitv for the duration of the winter pollution season. 

6. On galre3.t sha 1 shake . delete 66 1 99 "everv" and insert the followini: . . 

m lieu thereof: "a good faith effort": 

PRD 8/27/05 edit: 

F.Analvsis: The department shall make everv effort to analvze the samples as soon as vossible. 

Proposed floor amendment: 

F. Analvsis: The department shall make WSF+ a good faith effort to analvze the samples as soon as possible. 

66 99 . . 7. On paye 3, lines 22 thro-dvsis . delete the followin? word111~.nserted 

bv the PRD 8/27/05 draft and insert the followin? in lieu thereoft 

PRD 8/27/05 edit: 

(NMDA) Petroleum Standards Bureau for analysis. All samples will be analyzed in accordance 

with either of two methods recognized by the American Society for Testing and Materials 

JASTM). ASTM D-5845 is a s~ectroscopic method currently used at VPMD. ASTM D-48 15 is 

a standard test method for the determination of C 1 and C4 alcohols and MTBE in gasoline by 

gas chromatonraphv used by the NMDA Petroleum Standards Bureau. 

Proposed floor amendment: 
JNMDA) Petroleum Standards Bureau for analysis. 

be conducted in accordance with the American Societv for Testing and Materials 

JASTM) standards or equivalent. Analysis shall complv with ASTM D-5845, ASTM D4815, or equivalent standard. 

8. On pa-e 4, lines 17 through 32. after the word CONTINGENCY = delete MIGWJRES , bb 99 bb 99 

ASUlW 99 . and delete the wordinp: throu-h the words following EPAproval. bb 99 

PRD Draft 8/27/05: 

20.1 1.102.14 CONTINGENCY MEASURES: 

/--f;-n-.n.]] 

monoxide the minimum oxygen content by wei&t of 2.7 percent required by Paragraph (1). of Subsection A of 

20.1 1.102.12 NMAC, 

[W 

will be increased to 3.0 percent immediately. 

1% > . . B. 

f II . If monitored carbon 

monoxide levels in Bernalillo county exceed 85 percent of the federal ambient carbon monoxide standards, then the 

Proposed floor amendment: 

20.1 1.102.14 CONTINGENCY [ -1 MEASURE: 

Ai [A!?

. . 

11 in? 17 . I I . I "A. I& 

f II . If monitored carbon 

monoxide levels in Bernalillo county exceed 85 percent of the federal ambient carbon monoxide standards, then the 

I EXHIBIT 4 1 
.II City of Albuquerque EXHIBIT 

I Environmental Health Department 

Vehicle Pollution Management Division 

1500 Broadway NE Albuquerque, New Mexico 87102 

I 

Public Comments: 

As of October 10,2005, no comments have been received 

regarding proposed regulation revisions to 20.1 1 .I02 NMAC. 

city of slbuquarque 
Cify of Albuquerque EXHIBIT 

Environmental Health Department 

Vehicle Pollution Management Division 

1500 Broadway NE Albuquerque, New Mexico 87102 

List of People Notified by E-mail of Proposed Regulation Revision to 

20.11.102 NMAC. 

rita-trujillo@nmenv.state.nm.us 

Icaudill@flash.net 

Brad-Musick@nmenv.state.nm.us 

slacy@doeal.gov 

dmckay@abqjournal.com 

karenflash@aol.com 

dunnpilo@swcp.com 

kmulloy@salud.unm.edu 

akirkman@eZrn.net 

mpappas@eZm. net 

cityhall@village.tijeras.nm.us 

sricdon@earthlink.net 

dvuchetich@viennapat.com 

godea@viennapat.com 

fmacias@cabq.gov 

jgould@doeal.gov 

mnelson@swcp.com 

hdoldew@sandia.gov 

Istark@cabq.gov 

tmenicucci@cabq.gov 
gary. henderson@erm.com 

mike.sullivan@wmeng.com 

gjoffel @corncast.net 

Tomkuehn@where2fly.com 

I -. OGT- 42-2005 UED 02 : 45 PM COA ENV 1 RONNENTAL HEALTH FAX NO. 50576826 17 

I 

mar Mr. Butt: 

Replacing ref- to @c equipment with roSIuerrceo ta apwpiatc 

WGaD Sacioty faoT@ting md Mamid8 ~ods b alsa tuxqhb1o. 4%; the# 

mtthodu my be updat&, yw will not d to revie tho SIP to rdod thottr: chrmgcs. 

Replrclng an Bxisth~ flnt g&cclule with a pdwkd corcmctim atlion aml dam 

tc~aroutllaadhthcdeolangwithcompllaaceordcnsmd~ties iaJeor 

&mgthening of ths SIP. 

With regud to the floar amcndmcnto mat wm fon~dtd to m, we pfa the 

lmpuge in rhe floor amcaw to 20.11.102.123 on &ng mdmb, It is mpn 

ruwinct tban wbat wsc propped while -8 dequats. In sdditloo, by bningfust the 

me ' mbasrrraiP#).11,102,14elimiartcr r dcgrocofrtdundrmr~tbntcxlstsd 

with~~anwumwhilc~~lo~bcutdihr~r. I .._ Ib*ir.to I 8Ccq?trb1c; 
~pba~equesti~~regardingthsseco~~.you~cont~cl.mew 

Sandra Raanio of my staff at (214) 665-3367, We ere avdlablc to Irssist;yoa in htm 

I mle revidon dm-; pluro do not hefitate to conhot us. 

llmnac H. Diw 

Cbicf 

Air Planning I 
ATTACHMENT F 

Hearing Record Transcripts 
BEFORE THE ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

IN THE MATTER OF THE HEARING REGARDING THE P R O P O S A L T O AMEND 20.11.102 NMAC, OXYGENATED FUELS (PART 102); TO INCORPORATE THE COMPLETE AND AMENDED 20.11.102 NMAC INTO THE NEW MEXICO STATE IMPLEMENTATION PLAN FOR AIR QUALITY (SIP). 

TRANSCRIPT OF PROCEEDINGS 

BE IT REMEMBERED that on the 12th day of 

October, 2005, this matter came on for hearing before 

ARTHUR G. OLONA, Hearing Officer, at Vincent E. Grieg 

Chambers, Albuquerque-Bernalillo County Government 

Center, 400 Marquette, Northwest, Albuquerque, New 

Mexico, at the hour of 5:38 PM. 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 1505) 243-5018 

.I - 

THE HEARING OFFICER: 

MR. ARTHUR G. OLONA Attorney at Law 500 Marquette, Northwest Suite 500 

Albuquerque, New Mexico 87102 

FOR THE ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD: 

MS. SUE UHSHLER, Chairman DR. STEPHEN PILON MS. KAREN WENTWORTH 

FOR THE CITY OF ALBUQUERQUE: 

ROBERT WHITE 

CITY ATTORNEY One Civic Plaza, Northwest Municipal Affalrs Albuquerque, New Mexico 87102 BY: MS. ADELIA W. KEARNY 

INDEX 

Opening Remarks by Mr. Olona 

GLEN L. DENNIS 

Direct Testimony 

Questions from the Board 

Closing Remarks by Mr. Olona 

Hearing Adjourned 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 1505) 243-5018 

PAGE 

EXHIBITS 1 

AQD EXHIBITS PAGE 2 

1. Public Review Draft 8/27/05 18 3 

2. New Mexico Register Vol. XVI, Number 15 18 4 

3. Albuquerque Journal 8/27/05 Legal Notice 18 5 

4. Floor Amendments to Public Review Draft 18 6 

8/27/05 of 20.11.102 Proposed Amendments 7 

5. Public comments as of 10/5/05 18 8 

6 List of People Notified 18 9 

7. ~etter of 10/12/05 18 10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

2 1 

22 

23 

24 

25 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 1505) 243-5018 

MR. OLONA: Good evening. This is a 

combined public hearing which is being held tonight 

Wednesday, October 12,2005, in the Vincent E. Griego 

Chambers in the basement of the Albuquerque-Bernalillo 

County Government Center, in Albuquerque, New Mexico. 

The time is now 5:38 PM. 

This is a public hearing of the 

Albuquerque-Bernalillo County Air Quality Control 

Board, also known as the "Air Board" or "Board," 

regarding the proposal by the Albuquerque 

Environmental Health Department or "Department," that 

the Air Board: One, adopt 20.11.102 NMAC, which is 

the New Mexico Administrative Code, regarding 

Oxygenated Fuels, also known as Part 102; and, two, 

direct staff to submit amended Part 102 to the United 

States Environmental Protection Agency for approval by 

the EPA and incorporation into the New Mexiao State 

Implementation Plan for Air Quality as a revision. 

My name is Arthur Olona. I am an attorney, 

and at one time I was a member of the Air Board. 

However, I am no longer a member of the Board. I have 

been authorized by the Board to conduct this hearing. 

I note for the record that, although there are seven 

positions on the Air Board, there are currently only 

six positions that are being filled with one vacancy 

KATHY TOWNSEND COURT REPORTERS Albuquerque. New Mexlco 87102 1505) 243-5018 
currently. This evening at this hearing there are 

three members of the Air Board present: The Chair, 

Sue Umshler; Karen Wentworth, and Dr. Stephen Pilon. 

If any other members of the Air Broad arrive during 

the course of this hearing, I would note that for the 

record. 

The court reporter today is Kathy Townsend 

Court Reporters. If any individual wishes to obtain a 

copy of the transcript of the hearing from this firm, 

please make arrangements with the court reporter to do 

so, and also note that you have to pay for the 

transcript. 

As we proceed with this public hearing, let 

me note that Air Board hearings do not follow the 

rules of evidence as applied in the courts. However, 

it is important that the Board must make its decisions 

based on sworn testimony and evidence submitted at 

this hearing, and that sworn testimony will become a 

part of the hearing record. Discussions at the Air 

I Board meeting are not the same as sworn testimony of 

I witnesses at this hearing. 

At this hearing, I will limit testimony that 

1 is irrelevant or repeats testimony already given. I 

1 will also rule whether evidence or exhibits may be 

admitted into the record and on any motions or 

KATHY TOWNSEND COURT REPORTERS ~lbuquerque. New Mexico 87102 (505) 243-5018 

an opportunity to ask questions of a witness, I will 

allow any person present to ask the witness questions. 

The questions to the witness must be related to the 

testimony just given by the witness. The person 

asking the question does not have to be sworn in, but 

the person who is asking a question cannot turn the 

question into his or her own testimony. 

When there are no additional individuals who 

wish to testify at this hearing, I will close the 

hearing. 

At this time, the staff for the City of 

Albuquerque Environmental Health Department may begin. 

Mr. Dennis. 

GLEN L. DENNIS 

After having been first duly sworn under oath, was 

questioned and testified as follows: 

DIRECT TESTIMONY 

MR. DENNIS: Good evening, Mr.Hearing 

Officer, members of the Board, my name is Glen Dennis, 

Division Manager for the Vehicle Pollution Management 

Division. I have served in that capacity for the past 

eight years. Prior to that time, I served as a 

section supervisor in the division, and previously 

also as an environmental scientist control strategist 

for the Air Quality Division and permit writer for the 

KATHY TOWNSEND COURT REPORTERS Albuquerque. New Mexico 87102 (5051 243-5018 

L " 

objections made. 

We will begin this hearing with the 

testimony of the Albuquerque Environmental Health 

Department regarding the Department's proposal that 

the Air Board amend Part 102 and incorporate amended 

Part 102 into the New Mexico State Implementation Plan 

for Air Quality, also known as the "SIP." Individuals 

at the hearing who wish to ask questions of the 

Department's witnesses will have an opportunity to do 

SO. 

Next, people at this hearing who are not 

Department staff who wish to testify will have an 

opportunity to do so, either in favor, against, or 

generally regarding the Department's proposals. If 

you want to testify and have not done so, please sign 

up immediately. There is a sign-up sheet located at 

the table near you in the rear of the room. Every 

person who testifies will be sworn in by the court 

reporter before giving testimony. Each sworn witness 

must identify himself or herself for the record, state 

their name and address, and what organization they 

represent. 

After each witness has testified, the Air 

Board members will have an opportunity to ask 

questions of a witness. After the Air Board has had 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 (505) 243-5018 

- " 

Air Quality Division. 

This evening I want to provide some 

testimony over staff proposed changes to Part 102 of 

the Oxygenated Fuels regulation. We do not consider 

these substantive changes to the regulation. They are 

basically to remove an obsolete procedures manual and 

references thereto, to incorporate still pertinent 

sections of that procedures manual directly into the 

regulation to simplify and clarify the regulation for 

the benefit of citizens, regulated industry, and the 

staff. 

I would refer you to Staff Exhibit 1, and 

what I would like to do is just briefly go through and 

highlight the changes. There are several instances 

here where there are repeated word substitutions, and 

I won't mention those each time we come to them. They 

are clearly outlined in the text. I will mention them 

the first time we come to them. 

Starting again with the Exhibit 1, page one, 

line ten, this is the first of these changes suggested 

by legal counsel, and that is to replace references of 

this part with the actual reference to the regulation. 

Also on this line, for clarification we are adding the 

language "motor fuel sold retail or wholesale or 

supplied." This is to dispel any notion that we would 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 (5051 243-5018 
be suggesting that any vehicle that comes into 

Bernalillo County would have to already be fueled with 

oxygenated fuel. The purpose of this regulation is to 

require that fuel sold or otherwise dispensed in 

Bernalillo County be oxygenated during the appropriate 

season. And following with that, on the next line, 

line 11, adding language to "except Indian lands," 

consistent with other regulations of this Board. 

Going down the page, the next significant 

change is line 36. This is just replacing the old 

convention for the chemical structure of ethanol with 

the new convention, which gives more detail on the 

actual structure. Going down to line 39, this is just 

removing some unnecessary language. 

Going to page two of Exhibit 1, the first 

line, here we are striking the definition of the 

procedures manual, and replacing that with a new 

subsection L, which actually gives a definition for 

the Vehicle Pollution Management Division, since it is 

mentioned throughout the regulation. 

Line five of page two, this is adding a new 

subsection, a new definition M for "Winter Pollution 

Season," and again, this is because this term is used 

throughout the regulation. 

Lines 13 and 14 were basically replacing the 

KATHY TOWNSEND COURT REPORTERS ~lbuquerque, New Mexico 87102 15051 243-5018 

becomes subsection D. 

On line one of page three of Exhibit 1, we 

have added the language "clearly" before labeled, 

because we did have some operators in the past who 

have put the labels in less than conspicuous places on 

pumps. For the most part, though, this subsection, 

you will see we have done strike-throughs on most of 

the language, and just left it as "with labels 

provided by the Department." This is to take care of 

and to simplify the regulation, again. 

The old regulation and procedures manual had 

actual samples of labels that we wanted folks to use. 

The reality has been that the program has provided the 

labels for many years to industry, so that we would 

have a uniform label. And so it doesn't make sense to 

continue with all this language and requirements. 

It's simpler just to say, use the labels provided by 

the Department. So that's what we are doing here. 

Lines 9 through 11, we are basically 

striking this subsection. This public education plan 

was language that dates to when the program was first 

starting, and this was an education plan that was 

developed to introduce the public to the coming new 

program. So, again, that's obsolete language at this 

point. 

KATHY TOWNSEND COURT REPORTERS ~lbuquerque, New Mexico 87102 1505) 243-5018 

in 

old reference, the reference to the old regulation, 

which was number 35, with language that just 

references for any prior versions of Part 102, and 

again striking the procedures manual reference. 

Line 19, again, this is additional language 

suggested by legal counsel to cover any possible 

section, sentence, subsection of the regulation in the 

severability clauses. 

Line 29, here we have added, "During the 

winter pollution season," to make it clear that's the 

time period for this program. Lines 33 and 34, 

replacing the actual reference to the dates with the 

season term. 

Line 48, subsection B, this is new language 

to the regulation, but this is language that was 

carried over in the most part from the procedures 

manual, with the exception of some language on line 

51, which gives suppliers a little more time this 

season to provide that inventory report. 

Line 52 subsection C, "Recordkeeping," 

again, this is language that is carried over from the 

procedures manual, but is new in the regulation 

itself. Line 56, because we have added a new 

subsection B and C, we had to strike the old 

subsection B. "La beling and notice to the public" now 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 (5051 243-5018 

Section E, is, again, new language, on line 

12, new language to the regulation, but again, it is 

language that's carried over from the procedures 

manual. Starting on line 18, subsection F, the same 

thing. This is language that is carried over from the 

procedures manual with a couple of exceptions, and 

that is that in the procedures manual, we have 

references to a particular manufacturer and model of 

equipment used for the analysis. Here you will see on 

lines 23 and 24, instead of doing that, we have 

referenced the actual test method which is a more 

appropriate approach. 

Line 26, old subsection C, which will now be 

G, for "Enforcement," we are deleting the language on 

the sampling that is redundant with that which is 

above, and incorporating new language which spells out 

the different compliance levels for fuel and the steps 

that must be taken by industry if they have 

noncompliant samples and based on the degree of 

noncompliance. This is historically the way the 

program has been operated, but it was not spelled out 

in this regulation. 

The old language in the regulation had a 

fine schedule which required that the Department fine 

noncompliant operators one and a half times the amount 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 15051 243-5018 
of money they saved by not putting oxygenated, 

including ethanol, into the fuel. That is no longer 

pertinent, as ethanol is significantly cheaper than 

gasoline now, and we feel it's much better. 

Historically, the way the program has been 

enforced is by giving operators, if they are just out 

of compliance, 24 hours to correct it. If not, then 

the pumps are closed out until the fuel is corrected. 

So, this is making it very clear what that 

enforcement, that graduated enforcement schedule is. 

Because of that clarifying language, we no longer need 

subsection (3) which starts on line 44, so that 

language is removed. 

On line 47, again, we have to renumber the 

subsections or reletter the subsections. So the old 

subsection D now becomes H. The same on line 53, the 

old subsection E becomes I. 

Going to page four, the final page of the 

regulation, basically starting on line four, striking 

all of 20.11.102.13, "Oxygenated Fuels Procedures 

Manual," that goes down through line 13. All that 

language is removed. 

Then starting on line 18 under "Contingency 

Measures," almost all of the language is removed here 

going down through line 28, and I won't speak to the 

KATHY TOWNSEND COURT REPORTERS 

~lbuquerque, New Mexico 87102 (505) 243-5018 

74-2-5.C, we are deleting C and inserting B to get the 

proper citation for that section. Similarly, as you 

go down to lines 16 and 17 where it says Section 3 and 

Section 4, I understand both the Bernalillo County 

I ordinances and City of Albuquerque revised ordinances, 

I the 3 and 4, will be replaced by 4 and 5 respectively. 

I Going to the second proposed floor amendment I in Exhibit 4, thid just is a correction of the 

I convention for quotation marks on the term "facility 

I or facilities," and that's on page one line 37 in 

I Exhibit 1. 

The third floor amendment in Exhibit 4, 

basically we are replacing the term "in the 

subsequent" with "of the immediately following." For 

clarification we had some discussions that subsequent 

wasn't always clearly understood, especially when we 

I are going from November of one year to February of the 

I following year. 

Page two of Exhibit 4, the fourth floor 

I amendment, basically we are just deleting the article 

I "a," which doesn't read correctly when you read 

I through that sentence. 

Floor amendment five, and this goes back to 

1 page two, line 55 of Exhibit 1, this is basically - - 

adding a time period for when the retail facilities or 

KATHY TOWNSEND COURT REPORTERS 

Albuquerque. New Mexico 87102 (5051 243-5018 

1 A 

new language that starts on 28, because we have a 

floor amendment which actually removes that. 

Subsequent to this, the public review draft found an 

even better way to get this to this point, so we will 

speak to those in the floor amendments coming up. 

And then finally on line 35, removing the 

specific reference to "for ethanol," on the 

contingency measures. 

That concludes my testimony relative to 

Exhibit 1. 

Moving on, Exhibit 2 is the "Affidavit of 

Publication in the New Mexico Register," which shows 

that the public notice of this proposed rule making 

and hearing was published in that register on August 

15 of 2005. 

Exhibit 3 simply is the affidavit of 

publication in the Albuquerque Journal, beginning on 

August 27 of 2005. 

Exhibit 4 is the staff proposed four 

amendments, and I would like to take just a couple 

minutes to go through those quickly. And I apologize, 

you may need to refer back to Exhibit 1 on some of 

these as we go through them. 

But on page one, line 15 of Exhibit 1, 

beginning with the citation to sections 74-2-4, 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexlco 87102 I5051 243-5018 

the fleet facilities have to maintain their records of 

fuel delivery or their bills of lading, so that if 

there is a question on whether they received an 

appropriate oxygenated load, they have that 

documentation on hand for our inspectors. 

Floor amendment six, there was some concern 

by legal counsel, appropriately so, of what every 

effort means in terms of sample collection and 

analysis, and the wording, suggested wording, is "a 

good faith effort" on the part of the department to 

analyze those samples within 24 hours. 

Floor amendment number seven, this is the 

language under sampling that I referenced before, 

which goes back to page three, lines 22 through 25 in 

Exhibit 1, and basically the language that we had 

originally suggested be inserted is removed, so that 

the end of that subsection will state simply, "sample 

analysis shall be conducted in accordance with the 

American Society for Testing and Materials (ASTM) 

standards or equivalent. Analysis shall comply with 

ASTM D-5845, ASTM D-4815, or equivalent standard." 

And the addition of the wording equivalent standards 

or equivalent standard allows for, should those ASTM 

methods be revised over time, that the Board won't 

have to go back and revisit this regulation again just 

KATHY TOWNSEND COURT REPORTERS 

Albuquerque, New Mexico 87102 (505) 243-5018 
for that purpose. And that goes along the lines of 

why we are here this evening in the first place. 

Floor amendment eight is designed to greatly 

simplify the "Contingency Measures" provision, and so, 

again, we are striking most of the language on 

contingency measures. It will now become "Contingency 

Measure." 

And starting at the bottom of page 3 of 

Exhibit 4, it will just read that, "If monitored 

carbon monoxide levels in Bernalillo County exceed 85 

percent of the federal ambient carbon monoxide 

standards, then the," and you would go back to Exhibit 

1, and then it just finishes off the existing language 

in Exhibit 1. That, again, "then the minimum oxygen 

content --" and this starts on lines 33 and 34 in 

Exhibit 1 -- "then the minimum oxygen content by 

weight of 2.7 percent required in paragraph one of 

subsection A of 20.1 1.102.12 NMAC, will be increased 

to three percent beginning November 1st of the 

immediately following winter pollution season." 

That concludes the proposed floor 

amendments. 

Exhibit 5 is just to note that we did not 

receive any public comment regarding these proposed 

changes. - - 

KATHY TOWNSEND COURT REPORTERS 

Albuquerque, New Mexico 87102 (505) 243-5018 

to me whether you notified operators of all results or 1 

whether you just notified them of negative results 2 

when you were testifying. 3 

MR. DENNIS: We typically do not notify them 4 

of all results. Some do request that, some operators 5 

do request that, and we are more than happy to provide 6 

that. We do not routinely notify them of that. We 7 

do, of course, notify them of noncompliant samples, 8 

noncompliant samples. 9 

MS. WENTWORTH: That's all the questions I 10 

have. 11 

MR. OLONA: Steve. 12 

MR. PILON: This is a technical question. 13 

The way you use "Indian lands" in line 11, is that 14 

consistent with the way we have used it previously? 15 

MR. DENNIS: Yes, it is. 16 

MR. OLONA: Any other questions by members 17 

of the Board? 18 

There being none, at this time does any 19 

member of the public have questions of the Department 20 

staff regarding the proposed regulation? If so, 2 1 

please step forward. 22 

There being none, thank you, Mr. Dennis. 23 

At this time, the public hearing will turn 24 

I to that portion where any .- group, . individual, or 125 

KATHY TOWNSEND COURT REPORTERS 

Albuquerque, New Mexico 87102 (505) 243-5018 

1 Q 

Exhibit 6 is the list, the e-mailed list of 

all the people who were notified of the availability 

of the public review document and of these proposed 

revisions. And I would note that the floor amendments 

were also sent to this group that's listed in Exhibit 

6. 

And finally, we did receive this afternoon 

comments from the EPA. It's not in your packet -- I 

guess it is, but it's not listed as an exhibit yet, so 

we would like to list that as Exhibit 7. It's 

basically positive comments from EPA that they agree 

with both the public review draft changes and the 

floor amendments. And with that, I would like to 

request that Exhibits 1 through 7 be admitted into the 

record. 

MR. OLONA: Any objection? There being no 

objection, I will admit Exhibits 1 through 7 into the 

record. 

(Exhibits 1 through 7 were received.) 

MR. OLONA: Anything further, Mr. Dennis? 

MR. DENNIS: No. Thank you. 

MR. OLONA: Does any member of the Board 

have any questions for Mr. Dennis regarding the 

proposed amendments? 

MS. WENTWORTH: I have one. It wasn't clea

KATHY TOWNSEND COURT REPORTERS 

Albuquerque, New Mexlco 87102 (505) 243-5018 

organization who wishes to give testimony in favor of 

the proposed amendments and regulation, may please 

step forward and give testimony. 

There being none, at this time any group, 

individual, or organization wishing to give testimony 

to the Board in opposition to the proposed amendment, 

please step forward and give testimony. 

There being none, at this time any group, 

individual, or organization wishing to give testimony 

to the Board as an interested person or party, that is 

neither in favor or in opposition to the proposed 

amendment, please step forward and give testimony. 

There being none, after this hearing closes 

this evening, if a quorum of Air Board members is 

present, the Air Board will hold its regular monthly 

meeting. If a meeting is held, the board is expected 

to make a decision regarding the Department's proposal 

that the Board: One, adopt 20.1 1.102 NMAC, Oxygenated 

Fuels; and two, direct staff to submit amended Part 

102 to the United States Environmental Protection 

Agency for approval and incorporation as a revision to 

the New Mexico State Implementation Plan for Air 

Quality. 

Thank you, everyone, for coming this 

evening. The time is now 6:10 PM. This hearing is 

KATHY TOWNSEND COURT REPORTERS 

Albuquerque, New Mexico 87102 (505) 243-5018 
now closed. 

MS. KEARNY: City Attorney, Adelia Kearny. 

I would like to mention, if anyone is going to stay 

around for that agenda item, that a quorum of the 

Board has not heard this hearing, and therefore, they 

will not be able to make a vote. They won't have a 

quorum and they can't vote on the proposals at this 

hearing. 

MR. OLONA: That's correct. So noted for 

the record. This hearing is now closed, and I will 

now turn the floor over to the Chair of Air Board, Sue 

Umshler. 

Madam Chair. 

MS. UMSHLER: Thank you, Mr. Hearing 

Officer. We are here without a quorum, so we cannot 

convene our regular monthly scheduled meeting. So, we 

will have to postpone the agenda items until next 

month. Thank you all for coming. 

( H e a r i n g a d j o u r n e d at 6:14 PM.1 

KATHY TOWNSEND COURT REPORTERS Albuquerque, New Mexico 87102 (505) 243-5018 

7 7 

STATE OF NEW MEXICO 

)SS. 

COUNTY OF BERNALILLOI 

I, Sally Peters, the officer before whom the 

foregoing hearing was taken, do hereby certify that the 

witnesses whose testimony appears in the foregoing 

transcript were duly sworn; that I personally recorded 

the testimony by machine shorthand; that said transcript 

is a true record of the testimony given by said 

witnesses; that I am neither attorney nor counsel for, 

nor related to or employed by any of the parties to the 

action in which this matter is taken, and that I am not 

a relative or employee of any attorney or counsel 

employed by the parties hereto or financially interested 

in the action. 

4 --- -------------- SALL PETERS 

CCR License Number: 57 Expires: 12/31/05 

KATHY TOWNSEND COURT REPORTERS Albuquerque. New Mexico 87102 15051 243-5018 
close [l] 719 

closed (31 1318 2111 21/10 

closes [l] 20113 

Closing [l] 2/19 

Code (I] 4/13 

collection [l] 16/8 

combined [l] 4/2 

come 121 8/16 8/18 

comes [1] 911 

coming 141 11/23 1415 20l24 21/18 

comment [l] 17/24 

comments [3] 3/8 18/8 18/11 

COMPLETE [l] 118 

compliance 121 12/17 1317 

comply [l] 16/20 

concern [I] 1616 

concludes [2] 1419 17/21 

conduct [1] 4/22 

conducted [l] 16/18 

consider [l] 8/4 

consistent [2] 918 19/15 

conspicuous 111 1115 

content 121 17/15 17/16 

contingency [5] 13/23 1418 1714 1716 1716 

continue (11 11116 

control 141 l/2 215 418 7/24 

convene [l] 21/16 

convention (31 9/11 9/12 1519 

copy 111 519 

correct It] 1317 21/9 

corrected [l] 1318 

correction [l] 1518 

correctly [l] 15/21 

counsel [5] 8/21 1016 1617 22/10 22/13 

COUNTY [lo] 111 1/18 215 415 418 9/2 915 

1514 17/10 2213 

couple 121 1216 14/20 

course 121 515 1918 

court 141 517 518 5/10 6/18 

courts 111 5/15 

cover 111 1016 

currently 121 4/24 511 

D 

dates 121 10112 11/21 

day [I] 1115 

decision [I] 20117 

decisions [l] 5/16 

definition [3] 9/16 9/18 9/22 

degree [l] 12/19 

deleting [3] 12/14 1511 15/20 

delivery 111 160 

DENNIS [7] 2/16 7/13 7/14 7/19 18/20 18/23 

19/23 

department [lo] 4/11 4/11 614 6/12 7/12 1119 

11118 12/24 16/10 19/20 

Department's 141 614 619 6/14 20117 

designed [l] 1713 

detail [l] 9/12 

developed 111 11/23 

did 131 1114 17/23 18/7 

different 111 12/17 

direct 141 2/17 4/15 7/17 20119 

directly 111 818 

discussions 121 5/19 15/15 

dispel [l] 8/25 

dispensed 111 914 

division [6] 7/20 7/21 7/23 7/25 811 9/19 

do 1121 5/10 5/14 619 6/13 814 8/13 1914 1915 

1916 1917 1918 2215 

document [1] 18/3 

documentation 11) 1615 

- 

- 131 17115 17116 1818 

A 

able [I] 2116 

above [l] 12/16 

accordance [l] 16/18 

action 121 22/12 22/15 

actual IS] 8/22 9/13 10112 11112 12/11 

actually 121 9/18 14/2 

added 131 1019 10/23 1113 

adding [4] 8/23 917 9121 15/25 

addition 111 16/22 

additional 121 718 1015 

address [l] 6/21 

ADELIA [2] 2/12 21/2 

adjourned 121 2/20 21119 

Administrative [I] 4/13 

admit (I] 18/17 

admitted 121 5/25 18/14 

adopt 121 4/12 20118 

Affairs [l] 2/11 

affidavit 121 14/11 14/16 

after 141 6/23 6/25 7/15 20113 

afternoon [I] 18/7 

again 1131 8/19 9/23 1014 1015 10121 11/10 

11/24 1211 12/2 13/14 16/25 1715 17/14 

against [1] 6/13 

Agency [2] 4/16 20121 

agenda [2] 2114 21/17 

agree [1] 18/11 

AIR 1231 

Albuquerque (111 1/19 214 218 211 1 315 415 

4/10 6B 7112 14/17 1515 

ALBUQUERQUE-BERNALILLO 151 111 

1/18 215 414 418 

all [9] 11/16 13/20 13/21 13/24 18/2 1911 1915 

19/10 21/18 

allow [1] 7/2 

allows Il] 16/23 

almost (11 13/24 

along [I] 1711 

already 121 5/23 9/2 

also 181 419 4/14 511 1 5/24 617 7/24 8/23 1815 

although [l] 4/23 

always [l] 15/16 

am 141 4/19 4/21 22/10 22/12 

ambient [l] 17/11 

amend 121 116615 

amended [4] 118 4/15 615 20119 

amendment 1101 14/2 1517 15/12 15/20 15/23 

1616 16/12 17B 2016 20112 

amendments 191 316 317 1415 14/20 17/22 1814 

18/13 18/24 2012 

American 111 16/19 

amount [l] 12/25 

analysis 141 12/9 16/9 16/18 16/20 

analyze [I] 16/11 

any[19]5/45185/257/28/259/110/310/6 

17/24 18/16 18/22 18/23 19/17 19/19 19/25 

2014 2018 2211 1 22/13 

anyone [l] 2113 

Anything [l] 18/20 

apologize 111 14/21 

appears [1] 2216 

applied 111 5/15 

approach 111 12/12 

appropriate 131 915 12/12 1614 

appropriately [1] 16/7 

approval 121 4/16 20/21 

AQD [I] 3/2 

are 1261 

around [I] 2114 

arrangements [1] 5/10 

arrive [l] 514 

ARTHUR 131 1/17 212 4/19 

article 111 15/20 

as 1191 318 419 4/14 4/18 5/13 5/15 Y20 617 

7/16 7/22 7/24 1118 1313 14/23 15/2 18/9 18/10 

20110 20/21 

ask 141 618 6/24 711 7/2 

asking 121 715 716 

ASTM 141 16/19 16/21 16/21 16/23 

attorney 161 2/2 2/10 4/19 2112 22/10 22/13 

August [2] 14/14 14/18 

authorized 111 4/22 

availability 111 1812 

B 

back W 14/22 15/23 16/14 16/25 17/12 

based 121 5/17 12/19 

basement [1] 414 

basically 191 8/6 9/25 11/19 13/19 15/13 15/20 

15/24 16/15 18/11 

be (171 1/15 5/24 6/18 713 715 911 912 915 12/13 

12118 1516 16/16 16/18 16/24 17/18 18/14 2116 

because IS] 9/23 l0/23 1114 1311 1 1411 

become 121 5/18 1716 

becomes 131 1111 13/16 13/17 

been IS] 4/22 7/15 11/13 12121 1315 

before 161 111 1/16 6/19 1113 16/13 2214 

begin 121 6/2 7/12 

beginning 131 14/17 14/25 17/19 

being [8] 4/2 4/25 18/16 19/19 19/23 2014 2018 

20113 

benefit [I] 8/10 

Bernalillo 151 912 915 1514 17/10 22B 

better 121 1314 1414 

bills 111 160 

board 1311 

both [2] 1514 18/12 

bottom [l] 1718 

briefly [I] 8/13 

Broad 111 514 

C 

came [I] 1/16 

can't [I] 2117 

cannot 121 716 21/15 

capacity [1] 7/21 

carbon 121 17/10 17/11 

care 111 1119 

carried 141 10116 10/21 12B 1215 

CCR [l] 22/19 

Center [2] 1/19 415 

certify [l] 2215 

Chair 131 5/2 21/11 21/13 

Chairman 111 216 

Chambers It] 1/18 414 

change [I] 9/10 

changes[6]8B8158/148/2017/2518112 

cheaper [I] 13B 

chemical [l] 9/11 

citation 121 14/25 1512 

citizens [I] 8/10 

CITY 151 218 2/10 7/11 1515 21/2 

Civic 111 2/10 

clarification 12) 8/23 15/15 

clarify [1] 8/9 

clarifying [l] 13/11 

clauses [l] 1018 

clear 131 10110 1319 18/25 

clearly 131 8/17 1113 15/16 



C 

W 

which... [3] 15/21 16/14 22/12 

WHITE 111 2/9 

who [9] 618 6/11 6/12 6/18 716 7l8 1 1/4 18/2 

2011 

wholesale [I] 8/24 

whom [I] 2214 

whose [I] 2216 

why [l] 1712 

will 1261 

winter [3] 9/22 10110 17/20 

wish (31 618 6/12 719 

wishes [2] 518 2011 

wishing 121 2015 2019 

within [I] 16/11 

without 111 21/15 

witness (71 6/19 6/23 6/25 7/1 7/2 713 714 

witnesses 141 SL?I 6B 2216 22/10 

won't 141 8/16 13/25 16/24 2116 

word (11 8/15 

wording 131 1619 1619 16/22 

would 1121 515 8/12 8/13 8/25 912 11/14 14/20 

17/12 18/4 18/10 18/13 21/3 

rwriter 111 7/25 

year [2] 15/17 15/18 

years 12) 7/22 11/14 

Yes (I] 19/16 

yet (I] 18/9 

you 1191 5/11 6/15 6/17 8/12 1117 1219 14/22 

192 15/21 17/12 18/21 19/1 19/2 1913 19/14 

19/23 20/24 21/14 21/18 
ATTACHMENT G 

Federal Register notice 
Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations 41963

Dated: April 25, 2005.

Steven D. Vaughn,

Director, Office of New Animal Drug 

Evaluation.

[FR Doc. 05–14329 Filed 7–20–05; 8:45 am]

BILLING CODE 4160–01–S

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs 

25 CFR Part 124 

RIN 1076–AE74 

Deposit of Proceeds From Lands 

Withdrawn for Native Selection; 

Correction

AGENCY: Bureau of Indian Affairs, 

Interior.

ACTION: Final rule; correction.

SUMMARY: This document contains a 

correction to a final rule that was 

published Thursday, July 14, 2005 (70 

FR 40660). The regulation relates to 

Deposit of Proceeds from Lands 

Withdrawn for Native Selection.

EFFECTIVE DATE: July 14, 2005.

FOR FURTHER INFORMATION CONTACT:

Assistant Director, Office of Trust 

Regulations, Policies and Procedures, by 

telephone at (505) 816–1086, or by 

facsimile transmission at (505) 816–

1377.

SUPPLEMENTARY INFORMATION: This rule 

is published by the authority of the 

Secretary, granted under 43 U.S.C. 1601 

et seq. and 25 U.S.C. 4001 et seq., and 

delegated to the Assistant Secretary—

Indian Affairs 209 DM 8.1. 

Background 

The final rule provides contact 

information to be used by all 

Departments and Agencies, the State of 

Alaska, and any other interested parties 

for deposit of proceeds from lands 

withdrawn for native selection. This 

rule was published by the Assistant 

Secretary—Indian Affairs in 

consultation with the Special Trustee 

for American Indians under the 

provisions of the American Indian Trust 

Fund Management Reform Act of 1994. 

Need for Correction 

As published, the final rule was 

introduced by words of issuance that do 

not satisfy Office of the Federal Register 

standards. The language must be 

corrected to allow for correct 

codification of the revised regulation. 

Correction of Publication 

Accordingly, the publication on July 

14, 2005, of the final rule that was the 

subject of FR Doc. 05–13891, is 

corrected as follows: 

On page 40660, in the second column, 

immediately following the name and 

title of the document’s signer, in the 

words of issuance, the word ‘‘amended’’

is corrected read ‘‘revised.’’

Dated: July 15, 2005. 

James E. Cason, 

Associate Deputy Secretary of the Interior.

[FR Doc. 05–14437 Filed 7–20–05; 8:45 am] 

BILLING CODE 4310–2W–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[Docket # ID–03–003; FRL–7941–7] 

Approval and Promulgation of Air 

Quality Implementation Plan; Idaho; 

Correction

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule; correction.

SUMMARY: This document corrects the 

preamble to a final rule published in the 

Federal Register of July 11, 2005 (70 FR 

39658) regarding revisions to the open 

burning regulations in Idaho’s State 

Implementation Plan. This notice 

clarifies that, under section 307(b)(1) of 

the Clean Air Act, any petition for 

judicial review of this action must be 

filed in the United States Court of 

Appeals for the appropriate circuit 

within 60 days from the date notice of 

approval appeared in the Federal 

Register, and not 30 days, as 

erroneously stated in July 11, 2005 

action.

FOR FURTHER INFORMATION CONTACT:

Donna Deneen, (206) 553–6706.

SUPPLEMENTARY INFORMATION:

Correction 

In the final rule, beginning on page 

39658 in the issue of July 11, 2005, 

make the following correction, in the 

SUPPLEMENTARY INFORMATION section. On 

page 39661 in the 3rd column, remove 

‘‘August 10, 2005’’ in the first paragraph 

and replace it with ’’September 9, 

2005’’.

Dated: July 14, 2005. 

Michelle Pirzadeh, 

Acting Regional Administrator, Region 10.

[FR Doc. 05–14399 Filed 7–20–05; 8:45 am] 

BILLING CODE 6560–50–M

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R06–OAR–2005–NM–0001; FRL–7942–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Albuquerque/Bernalillo 

County

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: This action finalizes our 

approval of the State Implementation 

Plan (SIP) revisions submitted by the 

Governor of New Mexico on September 

7, 2004. The submittal revises the 

second ten-year carbon monoxide (CO) 

maintenance plan for the Albuquerque/

Bernalillo County, New Mexico area. 

The submittal also revises the relevant 

parts of the New Mexico Administrative 

Code (NMAC) including revisions to the 

General Provisions, Inspection and 

Maintenance (I&M) Program, and the 

contingency measures. We are finalizing 

approval of these revisions in 

accordance with the requirements of the 

Federal Clean Air Act (the Act).

DATES: This rule is effective on August 

22, 2005.

ADDRESSES: The EPA has established a 

docket for this action under Regional 

Material in EDocket (RME) Docket ID 

No. R06–OAR–2005–NM–0001. All 

documents in the docket are listed in 

the RME index at http://docket.epa.gov/

rmepub/, once in the system, select 

‘‘quick search,’’ then key in the 

appropriate RME Docket identification 

number. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in RME or 

in hard copy at the Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The file will 

be made available by appointment for 

public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. Contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

41964 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: 

Environmental Protection Agency, 

Region 6, Air Planning Section (6PD–L), 

1445 Ross Avenue, Dallas, Texas 75202–

2733. 

The City of Albuquerque, 

Environmental Health Department, One 

Civic Plaza, Albuquerque, NM 87102.

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar of the Air Planning Section 

(6PD–L), EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733 at 

(214) 665–6691, shar.alan@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Background Information 

1. What actions are we taking in this 

document? 

2. Who submitted comments to us? 

3. What is our response to the submitted 

written comments? 

4. What areas in New Mexico will these 

rule revisions affect? 

II. Final Action 

III. Statutory and Executive Order Reviews

In this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’

refer to EPA.

I. Background Information 

1. What Actions Are We Taking in This 

Document?

On April 14, 2005 (70 FR 19723) we 

proposed approval of revisions to the 

New Mexico SIP pertaining to the 

second ten-year CO maintenance plan 

for the Albuquerque/Bernalillo County, 

New Mexico area and its relevant parts 

of the NMAC including revisions to the 

General Provisions, I&M Program, the 

Oxygenated Fuels Program, and the 

contingency measures. In the April 14, 

2005 Federal Register (70 FR 19723), we 

stated that written comment must be 

received by May 16, 2005. We received 

written adverse comments during the 

public comment period. 

On June 8, 2005 (70 FR 33363) we 

published the withdrawal of the direct 

final rule 70 FR 19702 due to the 

adverse comments received. A detailed 

rationale for our action is set forth in the 

direct final rule. See 70 FR 19702, and 

the Technical Support Document for 

further information. In the June 8, 2005, 

Federal Register (70 FR 33363) as well 

as the April 14, 2005 direct final rule we 

stated that we will summarize and 

respond to written comments received, 

and take final rulemaking action on the 

requested New Mexico SIP revision. In 

the June 8, 2005, Federal Register (70 

FR 33363), we cited two references as 

‘‘71 FR 19723’’ and ‘‘71 FR 19702’’ by 

mistake. The correct citations for those 

two references should have read ‘‘70 FR 

19723’’ and ‘‘70 FR 19702’’ instead. 

Today, we are correcting that error. 

Today, we are also summarizing and 

responding to written comments 

received and taking final rulemaking 

action on the April 14, 2005 (70 FR 

19723) proposal pertaining to the 

Albuquerque/Bernalillo County, New 

Mexico SIP revision. See sections 2 and 

3 of this document for more 

information. 

2. Who Submitted Comments to Us? 

We received written comments on the 

April 14, 2005 (70 FR 19723), proposed 

New Mexico SIP revision. The 

comments were submitted by Chevron 

and ConocoPhilips (the Commenters) 

during the public comment period. 

3. What Is Our Response to the 

Submitted Written Comments? 

Our responses to the written 

comments concerning the April 14, 

2005 (70 FR 19723) proposal, New 

Mexico SIP revision are as follows: 

Comment #1: Chevron and 

ConocoPhillips (the Commenters) 

expressed their opposition to 

maintaining the 2.7 percent oxygenated 

fuel content requirement, for the period 

from November 1st through the end of 

February (Winter season) as a part of the 

second ten-year CO limited 

maintenance plan, within the 

Albuquerque/Bernalillo County, New 

Mexico area. Chevron submitted a chart 

indicating the downward trend of 

calculated CO concentrations in the area 

for the recent years to substantiate its 

position. 

Response to Comment #1: The Act 

assigns to the states initial and primary 

responsibility for formulating a plan to 

achieve the NAAQS. It is up to the state 

to prepare state implementation plans 

which contain specific pollution control 

measures. An examination of this SIP 

submittal reveals no record of the 

Commenters having provided input or 

submitted comments to the State or the 

Albuquerque Environmental Health 

Department (AEHD) during their 

rulemaking process. The EPA’s 

responsibilities under the Act are 

qualitatively different from those of the 

state agency. The EPA is charged with 

reviewing and approving or 

disapproving the enforceable 

implementation plans prepared by 

states and other political subdivisions 

identified in the statute. It is not EPA’s 

role to disapprove the State’s choice of 

control strategies if that strategy will 

result in attainment or continued 

maintenance of the NAAQS, and meets 

all other applicable statutory 

requirements. See Union Electric v. 

EPA, 427 U.S. 246 (1976); Train v. 

NRDC 421 U.S 60 (1975). The EPA’s role 

in reviewing SIP submittals is to 

approve state choices, provided that 

they meet the criteria of the Act. Federal 

inquiry into the reasonableness of state 

action is not allowed under the Act (see, 

Union Electric Co. v. EPA, 427 U.S. 246, 

255–266 (1976); 42 U.S.C. 7410(a)(2)). 

Under section 116 of the Act, with 

certain exceptions not relevant here, a 

State retains the right to adopt and 

enforce any requirement respecting 

control or abatement of air pollution, 

including more stringent emissions 

standards and limitations. The State has 

submitted information indicating that 

the administrative requirements of New 

Mexico law have been met. We can 

agree with the Commenters’ statement 

that all CO emissions in the 

Albuquerque/Bernalillo County are not 

from mobile sources. However, the CO 

emissions inventory Table I of the April 

14, 2005 (70 FR 19702) direct final rule 

indicates that more than 84% (398.14/

473.34) of the CO emissions in the area 

are mobile source related. We can agree 

with the Commenters that the overall 

trend as shown in the chart, provided by 

the Commenters, indicates a downward 

trend for the calculated CO 

concentrations in the Albuquerque/

Bernalillo County area for recent years. 

However, we consider this downward 

trend to be attributable to the success of 

control measures and implementation of 

enforceable air quality plans adopted by 

Albuquerque/Bernalillo County. Thus, 

removing the oxygenated fuel content 

requirement as requested by the 

Commenters (even if EPA had such 

authority which, as explained 

previously, it does not) could 

potentially cause CO concentrations in 

the area to increase. We believe that the 

measures adopted by the Albuquerque/

Bernalillo County are adequate, and 

reflect a coherent way air planning and 

transportation have come together to 

address air quality issues in the area. 

For all of these stated reasons, we 

disagree with the Commenters’s 

opposition to the existing program.

Comment #2: Chevron states that on 

multiple occasions this past season the 

railroad was unable to deliver ethanol 

tank cars into their terminal when they 

were needed. Chevron also stated they 

experienced similar problems in their 

Phoenix and Las Vegas terminals, as 

well. In those instances, Chevron claims 

that they had to arrange to purchase and 

truck ethanol into their terminals to 

Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations 41965

ensure a continuous and reliable supply 

to the customers. 

Response to Comment #2: This 

comment is not relevant to today’s 

rulemaking action. Various forms of the 

Oxygenated Fuels Program have been in 

place since 1988 in the area, and EPA 

approved the Program utilizing ethanol 

in 1993. Today’s rulemaking only 

approves minor grammatical and 

typographical changes to the existing 

program; it does not change the 

substance of the program EPA approved 

in 1993. Chevron’s concern about 

ethanol supply to meet the existing 

program, therefore, is not relevant to 

today’s action. 

As noted previously, the State has the 

authority to include these measures 

under section 116 of the Act in its SIP. 

Again, comments concerning ethanol 

supply issues should have also been 

directed to the State. Therefore, we can 

not delete these measures from the SIP, 

if the State has adopted or wants to 

include them in its SIP. 

As far as Chevron’s Albuquerque 

terminal operation is concerned, we 

believe that the delivery and on-time 

availability of ethanol scenarios 

described above are largely business 

strategy related matters rather than a CO 

maintenance issue. Such matters are 

best addressed through merchandise 

inventory preparations, factoring storage 

tank design/capacity estimates, advance 

scheduling/planning, and forecasting 

considerations. 

This concludes our responses to the 

written comments we received during 

public comment period concerning the 

April 14, 2005 (70 FR 19723), New 

Mexico proposed SIP revision. 

4. What Areas in New Mexico Will 

These Rule Revisions Affect? 

These rule revisions affect all sources 

of air emissions operating within the 

Albuquerque/Bernalillo County, New 

Mexico area. 

II. Final Action 

Today, we are finalizing approval of 

the CO limited maintenance plan and its 

relevant parts of the NMAC including 

revisions to the General Provisions 

(‘‘Resolutions,’’ ‘‘Definitions,’’ and 

‘‘Interpretation’’), I&M Program, the 

Oxygenated Fuels Program, and the 

contingency measures. We published 

the proposal for this approval on April 

14, 2005 (70 FR 19723). 

III. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4).

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 19, 

2005. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Reporting 

and recordkeeping requirements.

Dated: July 14, 2005. 

Richard E. Greene, 

Regional Administrator, Region 6.

■ 40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart GG—New Mexico

■ 2. Section 52.1620 is amended as 

follows:

■ a. In paragraph (c), in the second table 

entitled ‘‘EPA Approved Albuquerque/

41966 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations 

Bernalillo County, NM Regulations,’’ by 

revising the entries for parts 1, 100, and 

102.

■ b. In paragraph (e), in the second table 

entitled ‘‘EPA Approved Nonregulatory 

Provisions and Quasi-Regulatory 

Measures in the New Mexico SIP’’ by 

adding one new entry to the end of the 

table. The revisions read as follows:

§ 52.1620 Identification of plan.

* * * * *

(c) * * *

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State citation Title/subject 

State approval/effective date 

EPA approval date Explanation 

Albuquerque/Bernalillo County, Air Quality Control Regulations

*******

New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality 

Control Board

Part 1 (20.11.1 NMAC) .................................. General Provisions ....................................... 09/07/04 7/21/05

[Insert FR 

page where 

document 

begins] 

*******

Part 100 (20.11.100 NMAC) .......................... Motor Vehicle Inspection—Decentralized .... 09/07/04 7/21/05 

[Insert FR 

page where 

document 

begins] 

Part 102 (20.11.102 NMAC) .......................... Oxygenated Fuels ........................................ 09/07/04 7/21/05 

[Insert FR 

page where 

document 

begins] 

* * * * * * * 

* * * * * (e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP 

Name of SIP provision Applicable geographic or nonattainment 

area 

State submittal date/

effective 

date 

EPA approval date Explanation 

*******

Second 10-year maintenance plan (limited 

maintenance plan) for Albuquerque/

Bernalillo County.

Bernalillo County .......................................... 09/07/04 7/21/05 

[Insert FR 

page where 

document 

begins] 

*******

Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations 41967

■ 3. Section 52.1627 is amended by 

designating the existing text as paragraph 

(a) and by adding paragraph (b) to read 

as follows:

§ 52.1627 Control strategy and 

regulations: Carbon monoxide.

* * * * *

(b) Approval—The Albuquerque/

Bernalillo County carbon monoxide 

limited maintenance plan revision dated 

September 7, 2004, meets the 

requirements of section 172 of the Clean 

Air Act, and is therefore approved.

[FR Doc. 05–14388 Filed 7–20–05; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[MD Docket Nos. 05–59 and 04–73; FCC 

05–137] 

Assessment and Collection of 

Regulatory Fees for Fiscal Year 2005; 

Assessment and Collection of 

Regulatory Fees for Fiscal Year 2004

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In this document, we 

conclude a proceeding to collect 

$280,098,000 in regulatory fees for 

Fiscal Year (FY) 2005. These fees are 

mandated by Congress and are collected 

to recover the regulatory costs 

associated with the Commission’s 

enforcement, policy and rulemaking, 

user information, and international 

activities. We also deny the petition for 

reconsideration filed by Cingular 

Wireless LLC of the Commission’s FY 

2004 Report and Order.

DATES: Effective August 22, 2005.

FOR FURTHER INFORMATION CONTACT:

Roland Helvajian, Office of Managing 

Director at (202) 418–0444 or Rob 

Fream, Office of Managing Director at 

(202) 418–0408.

SUPPLEMENTARY INFORMATION: 

Adopted: July 1, 2005. 

Released: July 7, 2005. 

By the Commission: Commissioner 

Copps concurring and issuing a 

statement; Commissioner Adelstein 

approving in part, concurring in part, 

and issuing a statement.

TABLE OF CONTENTS

Heading Paragraph 

No. 

I. Introduction ......................................................................................................................................................................................... 1 

II. Discussion ......................................................................................................................................................................................... 2 

A. Development of FY 2005 Fees .................................................................................................................................................. 2 

1. Calculation of Revenue and Fee Requirements ................................................................................................................. 2 

2. Additional Adjustments to Payment Units ........................................................................................................................... 3 

3. Commercial Mobile Radio Service (CMRS) Messaging Service ........................................................................................ 5 

4. Local Multipoint Distribution Service (LMDS) ..................................................................................................................... 6 

5. International Bearer Circuits ............................................................................................................................................... 8 

6. Regulatory Fees for Direct Broadcast Service (DBS) Providers and Cable Television Operators ................................... 10 

7. Multichannel Video Distribution and Data Service (MVDDS) ............................................................................................. 12 

8. Broadband Radio Service (BRS) / Educational Broadband Service (EBS), (formerly MDS/MMDS and ITFS) ................ 13 

9. Regulatory Fees for AM and FM Construction Permits ..................................................................................................... 14 

10. Clarification of Policies and Procedures ........................................................................................................................... 16 

a. Ad Hoc Issues Concerning Our Regulatory Fee Exemption Policies ......................................................................... 16 

b. Regulatory Fee Obligations for Digital Broadcasters .................................................................................................. 23 

c. Regulatory Fee Obligations for AM Expanded Band Broadcasters ............................................................................ 24 

d. Effective Date of Payment of Multi-Year Wireless Fees ............................................................................................. 26 

11. Notification, Assessment and Collection of Regulatory Fees ........................................................................................... 27 

a. Interstate Telecommunications Service Providers (ITSPs) ......................................................................................... 29 

b. Satellite Space Station Licensees ............................................................................................................................... 31 

c. Media Services Licensees ........................................................................................................................................... 34 

d. Cable Television Subscribers ...................................................................................................................................... 36 

B. FY 2005 Fee Determination and FY 2004 Reconsideration ..................................................................................................... 38 

12. Commercial Mobile Radio Service (CMRS) Providers ..................................................................................................... 38 

III. Procedural Matters ........................................................................................................................................................................... 45 

A. Payment of Regulatory Fees ..................................................................................................................................................... 45 

1. De Minimis Fee Payment Liability ...................................................................................................................................... 45 

2. Standard Fee Calculations and Payment Dates for Annual Regulatory Fees ................................................................... 46 

3. Limitations on Credit Card Transactions ............................................................................................................................ 48 

B. Enforcement ............................................................................................................................................................................... 49 

C. Congressional Review Act Analysis .......................................................................................................................................... 51 

IV. Ordering Clauses ............................................................................................................................................................................. 52 

Attachments: 

Attachment A Final Regulatory Flexibility Analysis 

Attachment B Sources of Payment Unit Estimates for FY2005 

Attachment C Calculation of Revenue Requirements and Pro-Rata Fees 

Attachment D FY 2005 Schedule of Regulatory Fees 

Attachment E Factors, Measurements, and Calculations that Determine Station Contours and Population Coverages 

Attachment F List of Commenters 

Attachment G FY 2004 Schedule of Regulatory Fees