# 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 1.102NMAC, 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").

- 

### NO X-YES - 

### NIA

Thispackage is being sent to EPA with a formal submittal letter from the Governor of the State ofNew 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 reviseplans 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 andfiled 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.

- 

### NO X-YES - 

### 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 wasprovided 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.

NO 

## X YES - 

### - - 

### 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 waspublished 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 samplingfvequency 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 programfrom 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

### 7-'1 

## 1iGy j 

# n ;:ti 11 ; 

# 2

LL3.2 

## 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 f

acilities. 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 197 8. 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 rightof 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. 197 0 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 s ource 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 judicialreview 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 rateof 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 im provement 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 levelsallowed 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 improvementboard 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 "alocal agency" for "the department"; redesignated former Subsection G as pres ent 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 CityLumber 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 analternative 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 197 8], 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 f

or "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-Bernalillocounty 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 197 8 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 directorwho 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 emi ssion inspection and maintenance program, including examining the alternatives of publicor 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 sy stem unless air qualityemissions 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 rule s, regulations and guidelines governing the establishment of private vehicle emission inspection and maintenance stations. No private vehicle emission inspection and maintenance station shall test vehiclesunless 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 toan 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 regulationsadopted by county board. — Section 4-37-2 NMSA 197 8 does not exempt a municipality from regulations adopted by a county air quality control board which has the authority toadopt 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 penaltie s 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 juri sdiction, 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 suchregulation pursuant to the federal act;

### (2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that, except as provided inParagraph (3) of this subsection: (a) shall be no more stringent than but atleast 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-Bernalillocounty 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 authorityunder 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 animpact 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 regaincontrol 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, becau se 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 MexicoEnvtl. 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 af ter 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 orquantity of sulfur dioxide in the specified time periods constitute s 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 standardfor 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 orexplaining 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 emissionswill, 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, re store 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 s ources 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 areaof 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 benef its of federal legislation; B. advise, consult, contract with and cooperate withlocal 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, betweenone 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 applic ation 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 witnesse s 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 requirementsfor prevention of significant deterioration, unless the secretary or the director grants anextension not to exceed ninety days for good cause, including the need to have public hearings; or (b) one hundred eighty days after the application isdetermined 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 agencyfails to take final action on a construction
permit application within the deadlines specifiedin 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 S ection 502(b) (3) of the 1990 amendments to the federal act; (8) a method for accelerated permit processingthat 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 tocontract with qualified outside firms to assist the department or local agency in itsaccelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm that does not have a conf lict 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 asnecessary 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 asa 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 agencyof 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 orthe 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 deci sion 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-pressureexhausts 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 S ubsection 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 insubparagraph 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 QualityControl 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, "localgoverning 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 containsno effective date provision, but, pursuant to N.M. Const., art. IV, § 23, is effective June 15, 2001, 90 days af ter adjournment of the legislature.

74-2-8. Variances. (1992) A. The environmental improvement board orthe 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 thatact, any regulation of the environmental improvement board or the local board or any permit condition will: (a) result in an arbitrary and unreas onable 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 providedfor 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 f iling 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 withreasonable probabilityinjure 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 CityLumber 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 variancemust not result in a condition injurious to health or safety is to impose the duty of proving a negative onthe 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 thusbears 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 Dif ficulties 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 appeal s. 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 improvementboard 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 anabuse 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" inthe 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 imminentand 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 takesuch 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 inaccordance 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 confidentialityprovision 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 publichearing. 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 makeand 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 oremployees 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 topay 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 tofurther 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 tobe 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 thissection, 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 admini strative 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 197 8. 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 re sponsibility 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 asto 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 thous and dollars ($15,000) for each day during any portion of which a violation occurs. B. In an action to enforce the provisionsof 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 attorneygeneral; (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 thatrepresented 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, enactedby 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:"; inSubsection 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 re sidential 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 re sidential 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 toSection 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 tobe 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 injuryto 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 ora 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 withrespect 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 introductoryparagraph, 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". — S ee 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 2Q 1.3), 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 qualitypermit 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 f und is appropriated to the department for the purpose of paying the reas onable 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 repeal s 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 tothis 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 doe s not repeal any laws but takes precedence over any law that conflicts with the provisions of that act. B. All county and municipal ordinancesand 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 admini strative 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 ef fect 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 filedTITLE 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 1.102.7NMAC 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 NMACL. "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 1.102 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 NMACfacility 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 "stopsale" order which will remain in effect until the violation is correctkd as determined by the department. Any fuel dispensed in violation of a "stopsale" 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 NMACOther History: 

### Regulation No. 35, Alternative Fuels, filed 6115195 was renumbered 

### and reformatted 

### into first version of the New Mexico Administrative Code as 20 NMAC 1I 

### .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 11.102.1.2, 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 orjet-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 validity of the remaining provisions of [hi+ 

## p 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 ~ollutionseamoxygenated 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~ order 

# :

' '6 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 

### I

# - *
0

. .



### 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 .-'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
nt blends 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 file b; the retailer or fleet facility for the 

## p 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 ~asolinestorage 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 

## 5rfa ethanol. MTBE. or other oxveenates. Any sam~le results contested bv a distributor or station will be sent bv the de~artment o the 

### fuelinefacillti_esa R\IMDA) petroleum standards bureau for gnalvsis. Samole analvsis shall be conduct

### ed~ 

## for



# oreauivalent standard. 

### 1. Enforcement: (1) 

### [T

## 1 "-.

. . 

## fi

. .


## 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 LICENSE TERMINATION 

## A encv l~cense shall terminate uDon the followine circum

### stances: (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 Drocure a hcense un-. 

## E . . rmlnatlon of an emerPenc?' license shall not preclude a~pli

### sation 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 3032005.

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

G 

# -

COSMETOLOGISTS



## 7 

## 1 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 11.1 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

.. s, 

## b

. . 

# ~

. . 

# 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

fadrivers 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 board 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 to reauest 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 

# El

CHAPTER 11 

### ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD 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 1.102.3NMAC 

### - 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.

m

### 20.11.102 NMAC Public Review Draft 08/27/05 

### 1

### L. 

## [I

. .

.. . 

## [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
center shall not affect actions pending for violation of a city or county ordinance 

# [w
-1, or prior versions of 20.1 1.lo2 NMAC [-I. 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) [[I 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 alljobbers. 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. 

## [i

. . 

## 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 1.102.12NMAC 

### - 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 1.102.13NMAC 

## - 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: [20.11.102.13NMAC]



### 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

rn



## 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~~~~~~~A~~~~~ 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 regard

### ine 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 feder

## NEW MEXICO COAL SURFACE MINING COMMISSION I

## 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 requiredname, 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 assistancewill be made available to you to review any public meeting documents, including agendas and minutes. 

# -

I 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
I 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 IcI 

## 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 010 

## STATE OF NEW MEXICOI 

# Cify 

# ofAlbuquerque 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

## February77 

# , 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, 

### will be increased to 3.0 

### percent immediately. 

## [W 1% 

# > . . 

### B.

II 

### . f 

### 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&

II 

### . f 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 

# ofAlbuquerque 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.govgary. 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 TranscriptsBEFORE 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) 243-5018currently. This evening at this hearing there are three members of the Air Board present: The Chair, Sue Umshler; Karen Wentworth, and Dr. Stephen Pilon. Ifany 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. Atthis 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 ofthe 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 infavor, 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 ofcitizens, 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 partwith 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 243-5018be 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 243-5018of 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 

# Iordinances and City of Albuquerque revised ordinances, 

# Ithe 3 and 4, will be replaced by 4 and 5 respectively. 

# I Going to the second proposed floor amendment 

# Iin Exhibit 4, thidjust is a correction of the 

# I convention for quotation marks on the term "facility 

# Ior 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 

# Iare going from November of one year to February of the 

# Ifollowing year. Page two of Exhibit 4, the fourth floor 

# Iamendment, basically we arejust 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 takejust 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) 243-5018for 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 itjust 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 clear

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) 243-5018now 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 243-5018close [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 9/119/121519 copy 111 519 correct It] 1317 21/9 corrected [l] 1318 correction [l] 1518 correctly [l] 15/21 counsel [5] 8/21 1016 1617 22/1022/13 COUNTY [lo] 

### 111 1/18215 415 418 9/2 915 1514 17/10 2213 couple 121 1216 14/20

course 121 515 1918 court 141 517 518 5/106/18 courts 111 5/15

cover 111 1016 currently 121 4/24511 

## 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] 2/167/137/14 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 4/157/17 20119 directly 

### 111 818 discussions 121 5/19 15/15 dispel [l] 8/25 dispensed 111 914 division [6] 7/207/21 7/23 7/25811 9/19 do 1121 5/10 5/14619 6/13814 8/131914 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 9/1310112 11112 12/11 actually 121 9/1814/2 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] 2/1221/2 adjourned 121 2/2021119 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 6/236/257/1520113 afternoon [I] 18/7 again 1131 8/199/23 1014 1015 10121 11/10 11/24 1211 12/2 13/1416/251715 17/14 against [1] 6/13 Agency [2] 4/1620121 agenda [2] 2114 21/17 agree [1] 18/11 AIR 1231 Albuquerque (111 1/19214 218 211 1 315 415 4/106B 7112 14/17 1515 ALBUQUERQUE-BERNALILLO 151 111 1/18215 414 418 all [9] 11/16 13/20 13/21 13/2418/2 1911 1915 19/1021/18 allow [1] 7/2 allows Il] 16/23 almost (11 13/24 along [I] 1711 already 121 5/23 9/2 also 181 419 4/14511 

### 1 5/24617 7/24 8/23 1815 although [l] 4/23 always [l] 15/16
am 141 4/194/21 22/1022/12 ambient [l] 17/11 amend 121 116615 amended [4] 118 4/15615 20119 amendment 1101 14/2 1517 15/12 15/2015/23 1616 16/1217B 2016 20112 amendments 191 316 317 1415 14/20 17/22 1814 18/13 18/242012 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 12/121614 appropriately [1] 16/7 approval 121 4/1620/21 AQD [I] 3/2 are 1261 around [I] 2114 arrangements [1] 5/10 arrive [l] 514 ARTHUR 131 1/17212 4/19 article 111 15/20
as 1191 318 419 4/14 4/18 5/135/15 Y20 617 7/167/227/24 1118 1313 14/2315/2 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 4/192112 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 16/1518/11 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 18/142116 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 7/1511/1312121 1315 before 161 111 1/16 6/19 1113 16/132214 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] 1/19415 certify [l] 2215 Chair 131 5/2 21/11 21/13 Chairman 

### 111 216 Chambers It] 1/18414 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 2/107/11 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 8/171113 15/16C 

## W

which... [3] 15/21 16/14 22/12 WHITE 111 2/9 who [9] 618 6/11 6/12 6/18 716 7l8 11/4 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

### 41963 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations

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


### 41965 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations

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 A PPROVED 

### A LBUQUERQUE

### /B ERNALILLO 

### C OUNTY 

### , NM R EGULATIONS

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 A PPROVED 

### N ONREGULATORY 

### P ROVISIONS AND 

### Q UASI 

### -R EGULATORY 

### M EASURES IN THE 

### N EW 

### M EXICO 

### 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]

*******


### 41967 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules and Regulations

■ 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 

### C ONTENTS

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