New Mexico § 74-2-7 - Permits; permit appeals to the environmental improvement board or the local board; permit fees

§ 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.