2023 New Mexico Statutes › Chapter 74 - Environmental Improvement › Article 2 - Air Pollution › Section 74-2-7 - Permits; permit appeals to the environmental improvement board or the local board; permit fees.

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 or the federal act will not be violated;
(2) specification of the deadlines for processing permit applications; provided that the deadline for a final decision by the department or the local agency on a construction permit application may not exceed:
(a) ninety days after the application is determined to be administratively complete, if the application is not subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings; or
(b) one hundred eighty days after the application is determined to be administratively complete, if the application is subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings;
(3) that if the department or local agency fails to take final action on a construction permit application within the deadlines specified in Paragraph (2) of this subsection, the department or local agency shall notify the applicant in writing that an extension of time is required to process the application and specify in detail the grounds for the extension;
(4) a description of elements required before the department or local agency shall deem an application administratively complete;
(5) specification of the public notice, comment period and public hearing, if any, required prior to the issuance of a permit; provided that the permit regulations adopted:
(a) by the environmental improvement board shall include provisions governing notice to nearby states; and
(b) by any local board shall include provisions requiring that notice be given to the department of all permit applications by any source that emits, or has a potential emission rate of, one hundred tons per year or more of any regulated air contaminant, including any source of fugitive emissions of each regulated air contaminant, at least sixty days prior to the date on which construction or major modification is to commence;
(6) a schedule of construction permit fees sufficient to cover the reasonable costs of:
(a) reviewing and acting upon any application for such permit; and
(b) implementing and enforcing the terms and conditions of the permit, excluding any court costs or other costs associated with an enforcement action;
(7) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act;
(8) a method for accelerated permit processing that may be requested at the sole discretion of the applicant at the time the applicant submits a construction permit application and that:
(a) allows the department or local agency to contract with qualified outside firms to assist the department or local agency in its accelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm that does not have a conflict of interest; and
(b) establishes a process for the department or local agency to account for the expenditure of the accelerated permit processing fees;
(9) allowance for additional permit application fees, sufficient to cover the reasonable costs of an accelerated permit application review process. Before the applicant is notified that the permit application has been determined to be complete, the department or local agency shall give the applicant a reasonable estimate of costs of an accelerated permit application review process;
(10) specification of the maximum length of time for which a permit shall be valid; provided that for an operating permit such period may not exceed five years; and
(11) for an operating permit only:
(a) provisions consistent with Sections 502(b) and 505(b) of the federal act providing: 1) notice to and review and comment by the United States environmental protection agency; and 2) that if the department or local agency receives notice of objection from the United States environmental protection agency before the operating permit is issued, the department or the local agency shall not issue the permit unless it is revised and issued under Section 505(c) of the federal act;
(b) provisions governing renewal of the operating permit; and
(c) specification of the conditions under which the operating permit may be terminated, modified or revoked and reissued prior to the expiration of the term of the operating permit.
C. Except as provided in Subsection O of this section, the department or the local agency may deny any application for:
(1) a construction permit if it appears that the construction or modification:
(a) will not meet applicable standards, rules or requirements of the Air Quality Control Act or the federal act;
(b) will cause or contribute to air contaminant levels in excess of a national or state standard or, within the boundaries of a local authority, applicable local ambient air quality standards; or
(c) will violate any other provision of the Air Quality Control Act or the federal act; and
(2) an operating permit if the source will not meet the applicable standards, rules or requirements pursuant to the Air Quality Control Act or the federal act.
D. The department or the local agency may specify conditions to any permit granted under this section, including:
(1) for a construction permit:
(a) a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the standards, rules and requirements of the Air Quality Control Act and the federal act;
(b) individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the permit application, whichever is more stringent;
(c) compliance with applicable federal standards of performance;
(d) reasonable restrictions and limitations not relating to emission limits or emission rates; or
(e) any combination of the conditions listed in this paragraph; and
(2) for an operating permit, terms and conditions sufficient to ensure compliance with the applicable standards, rules and requirements pursuant to the Air Quality Control Act and the federal act.
E. This section does not authorize the department or the local agency to require the use of machinery, devices or equipment from a particular manufacturer if the federal standards of performance, state regulations and permit conditions may be met by machinery, devices or equipment otherwise available.
F. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act and any applicable regulations of the environmental improvement board or the local board. Any conditions placed upon a permit by the department or the local agency shall be enforceable to the same extent as a regulation of its board.
G. A person who participated in a permitting action before the department or the local agency shall be notified by the department or the local agency of the action taken and the reasons for the action. Notification of the applicant shall be by certified mail.
H. A person who participated in a permitting action before the department or the local agency and who is adversely affected by such permitting action may file a petition for hearing before the environmental improvement board or the local board. The petition shall be made in writing to the environmental improvement board or the local board within thirty days from the date notice is given of the department's or the local agency's action. Unless a timely petition for hearing is made, the decision of the department or the local agency shall be final.
I. If a timely petition for hearing is made, the environmental improvement board or the local board shall hold a hearing within sixty days after receipt of the petition. The environmental improvement board or the local board shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the hearing. If the subject of the petition is a permitting action deemed by the environmental improvement board or the local board to substantially affect the public interest, the environmental improvement board or the local board shall ensure that the public receives notice of the date, time and place of the hearing. The public in such circumstances shall also be given a reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing.
J. The environmental improvement board or the local board may designate a hearing officer to take evidence in the hearing. All hearings shall be recorded.
K. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the environmental improvement board or the local board shall sustain, modify or reverse the action of the department or the local agency respectively.
L. Notwithstanding any other provision of law and subject to the provisions of Section 74-2-4 NMSA 1978, a final decision on a permit by the department, the environmental improvement board, the local agency, the local board or the court of appeals that a source will or will not meet applicable local, state and federal air pollution standards and regulations shall be conclusive and is binding on every other state agency and as an issue before any other state agency shall be deemed resolved in accordance with that final decision.
M. Subject to the provisions of Section 74-2-4 NMSA 1978, if the local board has adopted a permit regulation pursuant to this section, persons constructing or modifying any source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department.
N. Fees collected pursuant to this section shall be deposited in:
(1) the state air quality permit fund created by Section 74-2-15 NMSA 1978 if collected by the department; or
(2) a fund created pursuant to Section 74-2-16 NMSA 1978 if collected by a local agency pursuant to a permit regulation adopted by the local board pursuant to this section.
O. The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by regulation of the environmental improvement board, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national ambient air quality standard. The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, "best system of emissions reduction" for cotton gins means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts.
P. The department or local agency may deny any permit application or revoke any permit issued pursuant to the Air Quality Control Act if, within ten years immediately preceding the date of submission of the permit application, the applicant or permittee has:
(1) knowingly misrepresented a material fact in an application for a permit;
(2) refused to disclose the information required by the provisions of the Air Quality Control Act;
(3) been convicted in any court of any state or the United States of:
(a) a felony related to environmental crime; or
(b) a crime defined by state or federal statute as involving or being in restraint of trade, price fixing, bribery or fraud;
(4) constructed or operated a facility for which a permit is sought without a permit required by the Air Quality Control Act, except when such an unpermitted facility is discovered after acquisition in the course of a timely environmental audit authorized by department or local board policy and except if:
(a) the operator of the facility using good engineering practices and established approved calculation methodologies estimated that the facility's emissions would not require a permit pursuant to the Air Quality Control Act; and
(b) upon discovery of the discrepancy between the calculated pre-construction maximum facility emissions and the calculated post-construction maximum facility emissions, the operator of the facility applies for the appropriate permit within thirty calendar days; or
(5) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.
Q. In making a finding under Subsection P of this section, the department or local agency may consider aggravating and mitigating factors.
R. If an applicant or permittee whose permit is being considered for denial or revocation on any basis provided by Subsection P of this section has submitted an action plan that has been approved in writing by the secretary or director, and plan approval includes a period of operation under a conditional permit that will allow the applicant or permittee a reasonable opportunity to demonstrate its rehabilitation, the secretary or director may issue a conditional permit for a reasonable period of time.
S. An applicant for a permit pursuant to the Air Quality Control Act shall file a disclosure statement with the department or local agency with the information listed in Subsection P of this section, and on a form developed by the department. An existing permit holder shall provide such disclosure upon request by the department or local agency.
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; 2021, ch. 89, § 1.
ANNOTATIONS
Cross references.
— For definitions of "department," "board" and "federal act,"
see
74-2-2 NMSA 1978.
For the federal Clean Air Act,
see
42 U.S.C. § 7401 et seq.
For Section 502 of the federal Clean Air Act, referred to in Subparagraph B(11)(a),
see
42 U.S.C. § 7661a.
For Section 505 the federal Clean Air Act, referred to in Subparagraph B(11)(a),
see
42 U.S.C. § 7661d.
The 2021 amendment,
effective June 18, 2021, authorized the department of environment or local agency to deny any permit application or revoke any permit issued pursuant to the Air Quality Control Act for cause, including poor compliance history, a previous felony conviction related to an environmental crime, constructing or operating an unpermitted facility, with exceptions, or based on a prior permit revocation or suspension in other states or under federal law; and added Subsections P through S.
The 2003 amendment,
effective June 20, 2003, added "except as provided in Subsection O of this section" at the beginning of Subsection C and added Subsection O.
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 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 1992 amendment,
effective March 5, 1992, rewrote this section to the extent that a detailed comparison would be impracticable.
In matters that substantially affect the public interest, notice and the public's opportunity to be heard is mandatory.
— In an appeal from a decision of the Albuquerque-Bernalillo county air quality control board (board), where petitioners challenged a permit issued by the city of Albuquerque environmental health department (department) allowing respondents to construct a gas station with authorization to pump up to 7,000,000 gallons of gasoline per year, claiming that the department had failed to take into account various "quality of life" concerns and that the department's decision to grant the permit application would cause emissions, odors, fumes, increased traffic, and other negative impacts on petitioners' property, the board's decision to grant respondent's motion for summary judgment was contrary to law, because the notice of hearing failed to inform the public that the board might resolve the appeal summarily prior to the public hearing, contrary to 74-2-7(I) NMSA 1978 which requires the board to consider the public's views or arguments when a permitting action substantially affects the public interest.
Freed v. City of Albuquerque (In re Merits Regarding Air Quality Permit No. 3135)
, 2017-NMCA-011.
Application of reasonable probability of injury standard not required during permitting process.
— Where the city of Albuquerque environmental health department (EHD) issued an authority-to-construct permit to an oil company pursuant to the New Mexico Air Quality Control Act (AQCA), 74-2-1 to 74-2-17 NMSA 1978, and where the Albuquerque-Bernalillo county air quality control board (board) upheld the EHD's issuance of the permit, and where plaintiff appealed the board's order, claiming that EHD and the board each failed to apply a "reasonable probability of injury" standard when evaluating the permit, the board did not err in upholding EHD's issuance of the authority-to-construct permit, because 74-2-7 NMSA 1978 directs EHD and the board to determine whether local, state, and federal air pollution standards or federal regulations have been violated, but does not impose on EHD or the board a requirement to independently apply the reasonable probability of injury standard when considering whether to grant a permit.
Southwest Organizing Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd
., 2021-NMCA-005.
Requirement to consider community testimony met during permitting process.
— Where the City of Albuquerque environmental health department (EHD) issued an authority-to-construct permit to an oil company pursuant to the New Mexico Air Quality Control Act (AQCA), 74-2-1 to 74-2-17 NMSA 1978, and where the Albuquerque-Bernalillo county air quality control board (board) upheld the EHD's issuance of the permit, and where plaintiff appealed the board's order, claiming that EHD, during the application process, and the board, at the later adjudicatory hearing, were required to consider community testimony regarding the oil company's effect on local resident quality of life, the board did not err in upholding EHD's issuance of the authority-to-construct permit, because EHD, during the initial application process, met the public comment requirement by holding a public information hearing, accepting pubic testimony about concerns for quality of life, and addressing written comments submitted before and during the hearing, and the board, during the hearings following the petition of EHD's decision to grant the permit, similarly permitted public testimony. EHD and the board, however, were not required to specifically address public testimony regarding quality of life issues in resolving the permit application.
Southwest Organizing Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd
., 2021-NMCA-005.
Hearing officer did not err in issuing a discovery order.
— Where the city of Albuquerque environmental health department (EHD) issued an authority-to-construct permit to an oil company pursuant to the New Mexico Air Quality Control Act (AQCA), 74-2-1 to 74-2-17 NMSA 1978, and where the Albuquerque-Bernalillo county air quality control board (board) upheld the EHD's issuance of the permit, and where plaintiff appealed the board's order, claiming that the board's hearing officer acted arbitrarily, capriciously, and not in accordance with the board's regulations in issuing a discovery order, there was no error because plaintiff has failed to demonstrate that the hearing officer permitted the discovery of irrelevant information or that the added burden of complying with the discovery order affected the outcome of the hearing.
Southwest Organizing Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd
., 2021-NMCA-005.
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.