New Mexico § 74-2-8 - Variances

§ 74-2-8. Variances

A. The environmental improvement board or the local board may grant an individual

variance from the limitations prescribed under the Air Quality Control Act, any regulation

of the environmental improvement board or the local board or any permit condition

imposed by the department or the local agency whenever it is found, upon presentation

of adequate proof: (1) that compliance with any part of that act, any regulation of the environmental

improvement board or the local board or any permit condition will: (a) result in an arbitrary and unreasonable taking of property; or (b) impose an undue economic burden upon any lawful business, occupation or activity;

and (2) that the granting of the variance will not: (a) result in a condition injurious to health or safety; or (b) cause or contribute to an air contaminant level in excess of any primary national

ambient air quality standards. B. No variance shall be granted pursuant to this section until the environmental improvement

board or the local board has considered the relative interests of the applicant, other

owners of property likely to be affected by the discharges and the general public. C. Any variance or renewal thereof shall be granted within the requirements of Subsection

A of this section and for time periods and under conditions consistent with the reasons

therefor and within the following limitations: (1) if the variance is granted on the ground that there are no practicable means known

or available for the adequate prevention, abatement or control of the air pollution

involved, it shall be only until the necessary means for prevention, abatement or

control become known and available; (2) if the variance is granted on the ground that compliance with the particular requirement

from which variance is sought will necessitate the taking of measures that because

of their extent or cost, must be spread over a considerable period of time, it shall

be for a period not to exceed such reasonable time as, in the view of the environmental

improvement board or the local board, is requisite for the taking of the necessary

measures. A variance granted on the ground specified in this paragraph shall contain a timetable

for the taking of action in an expeditious manner and shall be conditioned on adherence

to the timetable; or (3) if the variance is granted on the ground that it is justified to relieve or prevent

hardship of a kind other than that provided for in Paragraphs (1) and (2) of this

subsection, it shall be for not more than one year. D. Any person seeking a variance shall do so by filing a petition for variance with

the secretary or the director charged with implementation of the Air Quality Control

Act at the site where the variance will apply. The secretary or the director shall promptly investigate the petition and make recommendation

to his respective board as to the disposition of the petition. E. Upon receiving the recommendation of the secretary or the director on the variance,

the environmental improvement board or the local board shall: (1) if the secretary or the director favors a variance, hold a public hearing prior

to the granting of any variance; and (2) if the secretary or the director is opposed to the granting of the variance, hold

a hearing only upon the request of the petitioner. F. In the hearing, the burden of proof shall be upon the petitioner.