CITY of ALBUQUERQUE
TWENTY FIFTH COUNCIL
COUNCIL BILL NO. ___O-23-88__________ ENACTMENT NO. ______________________
SPONSORED BY: Dan Lewis
Ordinance
title
Repealing Chapter 9, Article 5, Part 1 ROA 1994, The Joint Air Quality Control Board Ordinance; Abolishing The Current Albuquerque-Bernalillo County Air Quality Control Board; Adopting Chapter 9, Article 5, Part 1 ROA 1994, The Joint Air Quality Control Ordinance; Creating The Albuquerque-Bernalillo County Air Quality Control Board (Lewis)
body
Repealing Chapter 9, Article 5, Part 1 ROA 1994, the Joint Air Quality Control Board Ordinance; Abolishing the Current Albuquerque-Bernalillo County Air Quality Control Board; ADOPTING Chapter 9, Article 5, Part 1 ROA 1994, the Joint Air Quality Control Ordinance; CreatING the Albuquerque-BERNALILLO COUNTY Air Quality Control Board.
WHEREAS, it has been asserted by legal counsel representing the Albuquerque-Bernalillo County Air Quality Control Board (Air Board) that said Board is an autonomous entity established by state statute, and not subject to control by Environmental Health, the City Council, or the County Commission; and
WHEREAS, it has been further affirmed by legal counsel representing the Air Board that the Air Board maintains collaborative relations with Environmental Health, the New Mexico Environmental Department, and the Environmental Protection Agency, without being governed by them; and
WHEREAS, these statements suggest that the Air Board may not be answerable to elected officials and, consequently, the electorate; and
WHEREAS, the absence of adherence to state law by the Air Board could result in a lack of accountability; and
WHEREAS, not all meetings sanctioned by the body regarding policy changes are accessible to the general public; and
WHEREAS, the Air Board conducts sub-committee meetings and engages select members of the public in those meetings; and
WHEREAS, the Open Meetings Act was established with the intent of ensuring that policy decisions affecting the public are made in a transparent and open manner, to serve the best interests of all residents of New Mexico; and
WHEREAS, adherence to the Open Meetings Act is essential to the preservation of a free society and the democratic process, as it is crucial for a policymaking body to maintain the trust of the public; and
WHEREAS, a significant portion of the Air Board comprises individuals advocating for specific interests rather than a diverse representation of experts in the relevant subject matter; and
WHEREAS, historically, the Air Board has strived to include members with backgrounds in the fields of medicine, science, industry, advocacy, law, and technical academia; and
WHEREAS, it is imperative to maintain a composition that reflects the diverse expertise required for the comprehensive consideration of pertinent matters.
Be it ordained by the Council, THE governing body of the City of Albuquerque:
SECTION 1. REPEALER. Chapter 9, Article 5, Part 1 is hereby repealed.
SECTION 2. NEW MATERIAL. Chapter 9, Article 5, Part 1 is hereby added to read as follows:
“PART 1: AIR QUALITY CONTROL BOARD.
§ 9-5-1-1 SHORT TITLE.
Sections 9-5-1-1 et seq. may be cited as the “Joint Air Quality Control Board Ordinance.”
§ 9-5-1-2 DEFINITIONS.
As provided in the New Mexico Air Quality Control Act, Sections 74-2-1 through 74-2-17 NMSA 1978 (hereinafter referred to as the “Air Quality Control Act”), the following definitions shall apply to terms used in §§ 9-5-1-1 et seq.
AIR CONTAMINANT. Any substance, including but not limited to any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, microorganisms, radioactive material, any combination thereof or any decay or reaction product thereof.
AIR POLLUTION. 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.
BOARD. The Albuquerque-Bernalillo County Air Quality Control Board created by §§ 9-5-1-1 et seq.
DEPARTMENT. The administrative agency that is the local agency under the Air Quality Control Act.
DIRECTOR. The administrative head of the Department or his or her authorized representative.
EMISSION LIMITATION and EMISSION STANDARD. A requirement established by the Board, the Department, 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.
ENVIRONMENT DEPARTMENT. The Environment Department of the state.
EX PARTE COMMUNICATION. An oral or other communication with a board member, a board hearing officer, or board attorney regarding the merits of an expected or pending petition or related proceeding if:
(1) the communication is made by a person, including a board member, hearing clerk, hearing officer, or board attorney;
(2) the person communicating knows or has reason to know a petition will be or has been filed for a hearing before the Board;
(3) the communication is made without all other parties to the proceeding being present or receiving the same communication received by the board member, board hearing officer, or board attorney, except where authorized by the closed meeting provisions of the Open Meetings Act; and
(4) the communication is intended to affect, or reasonably may be expected to affect the board member’s, board hearing officer’s, or board attorney’s opinion regarding the merits of the expected or pending petition or related proceeding.
FEDERAL ACT. The Federal Clean Air Act, 42 U.S.C. 7401 through 7642, its subsequent amendments and successor provisions.
FEDERAL STANDARD OF PERFORMANCE. Any standard of performance, emission limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412.
HAZARDOUS AIR POLLUTANT. An air contaminant that has been classified as a hazardous air pollutant pursuant to the Federal Act.
MANDATORY CLASS I AREA. Any of the following areas in the state of New Mexico that were in existence on August 7, 1977:
(1) National wilderness areas that exceed 5,000 acres in size; and
(2) National parks that exceed 6,000 acres in size.
MAYOR. The Mayor or his or her authorized representative.
MODIFICATION. Any physical change in, or change in the method of operation of a source that results in an increase in the Potential Emission Rate of any Regulated Air Contaminant emitted by the source or that results in the emission of any 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 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 any natural gas curtailment or emergency allocation or any other lack of supply of natural gas.
NONATTAINMENT AREA. For any air contaminant, an area that is designated “nonattainment” with respect to that contaminant within the meaning of Section 107(d) of the Federal Act.
PERSON. An individual, partnership, corporation, association, the state or political subdivision of the state or any agency, department, or instrumentality of the United States and any of their officers, agents or employees.
PLAN. Any and all parts of the state implementation plan that pertain to the County that are adopted by the Board for submittal by the Governor of the state to the Federal Environmental Protection Agency pursuant to 42 U.S.C. Section 7410.
POTENTIAL EMISSION RATE. 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; also defined by Board regulations as “pre-controlled” emissions.
REGULATED AIR CONTAMINANT. Any air contaminant, the emission or ambient concentration of which is regulated pursuant to the Air Quality Control Act or the Federal Act.
SIGNIFICANT DETERIORATION. Any increase in the ambient concentrations of any air contaminant above the levels allowed by the Federal Act or Federal regulations for that air contaminant in the area within which the increase occurs.
SOURCE. Any structure, building, equipment, facility, installation or operation that emits or may emit any air contaminant.
STANDARD OF PERFORMANCE. A requirement of continuous emission reduction, including any requirement relating to operation or maintenance of a source to assure continuous emission reduction.
STATE IMPLEMENTATION PLAN. Any plan submitted by the Governor of the state of New Mexico to the Federal Environmental Protection Agency pursuant to 42 U.S.C. Section 7410.
§ 9-5-1-3 JOINT AIR QUALITY CONTROL BOARD.
(A) In accordance with the New Mexico Air Quality Control Act, a joint air quality control board known as the Albuquerque-Bernalillo County Air Quality Control Board is created. The Board shall serve as a joint local authority acting on behalf of both the City and the County. Within the exterior boundaries of the county, the Board shall have authority and jurisdiction to exercise the same functions pertaining to air quality as the functions that have been delegated by the Air Quality Control Act to the New Mexico Environmental Improvement Board except any functions reserved exclusively for the Environmental Improvement Board.
(B) The membership and organization of the Board shall be as described in this section.
(1) The Board shall consist of seven members, four of whom shall be appointed by the Mayor with the advice and consent of the City Council and three of whom shall be appointed by the County Commission. The Mayor shall submit qualified appointments to City Council within 30 days of the effective date. If the Mayor does not timely submit qualified persons for appointment, City Council may appoint the initial members of the Board.
(2) Members shall be appointed for three-year terms. No member shall serve more than two consecutive terms at a time. If a person is appointed to fill an unexpired term of another member, that term shall be considered a term for the purpose of this limitation. The positions on the Board shall be staggered appointments so no more than two City appointee’s terms expire in any single year. Vacant positions shall be filled by individuals appointed by the same authority that appointed the outgoing member.
(3) Nominations and appointments to the Board shall be made as follows:
(a) At least a majority of the membership of the Board shall be individuals who represent the public interest and meet the requirements of the state and federal guidelines set forth in the New Mexico Air Quality Control Act, as amended, and the Federal Clean Air Act, 42 U.S.C.A. Section 7401, et seq., as amended. The board should be comprised of members who broadly represent the diversity and demographics of the City by way of, including but not limited to, cultural, gender, and geographic diversity. Further, to the extent that the requirement does not conflict with this division (a), Board members will be selected as follows: one Board member shall be a registered professional licensed engineer who shall have at least five (5) years’ experience in the field of air pollution control; one Board member shall be a physician licensed in New Mexico who shall be experienced in the health effects of air contaminants; one Board member shall be a person involved in the program of an institute of higher learning in the state involved in the conducting of training in air pollution evaluation and control; and one Board member shall be a person from City industry with current full-time employment in a private manufacturing concern and have a college degree and 8 years of combined technical training and experience in permit compliance or air pollution abatement for Title 5 or non-Title 5 sources for a source permitted in the City or County. As used in this section: REPRESENT THE PUBLIC means does not have a controlling interest in, have 5 percent or more of his or her capital invested in, serve as attorney for, act as consultant for, serve as officer or director of, or hold any other official or contractual relationship with any person subject to permits or enforcement orders or any trade or business association of which such a person is a member; SIGNIFICANT PORTION OF INCOME means 10 percent or more of gross personal income for a calendar year, including retirement benefits, consultant fees, and stock dividends, except that it shall mean 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant, to retirement, pension, or singular arrangement. Income derived from mutual-fund payments, or from other diversified investments as to which the recipient does not know the identity of the primary sources of income, shall be considered part of the recipient’s gross personal income but shall not be treated as income derived from persons subject to permits or enforcement orders; and PERSONS SUBJECT TO PERMITS OR ENFORCEMENT ORDERS includes any individual, corporation, partnership, or association who holds, is an applicant for, or is subject to any permit, or who is or may become subject to any enforcement order under the Federal Clean Air Act, Air Quality Control Act, any regulation of the Board or any permit condition issued thereto, except that it does not include (1) an individual who is or may become subject to an enforcement order solely by reason of his or her ownership or operation of a motor vehicle or (2) any department or agency of, a state, local or regional government.
(b) No person employed on a full time basis by either the City or the County shall be a member of the Board. No elected City or County official, and no member of the immediate family of any elected City or County official shall be appointed to the Board.
(c) Members shall submit to the Department a signed written statement to assure compliance with the applicable law on Board composition, upon appointment and renewed annually or with any change in employment, and such statement shall be available for public inspection. In the event either the Department cannot make a finding that at least a majority of the Board as constituted by appointment of its members meets the requirements of applicable law, the Department shall notify the City Council and the County Commission of the determination that at least a majority of its membership does not meet the requirements. The Department shall advise and make recommendations regarding corrective action necessary to allow the Board to be qualified under applicable law, including substitutionary appointments of a member or members. The Board shall not act to hear petitions of permit appeals, variances, or regulatory changes until the City Council and County Commission have both determined that it can do so consistent with applicable law.
(d) City-appointed members shall be residents of the City and County-appointed members shall be residents of the County.
(e) A Board member may be removed from office by the appointing authority if:
(i) The appointing authority determines the member has violated any law, regulation, or ordinance, or for other good cause such as malfeasance or the intentional failure to carry out the duties of the Board, or is otherwise incapable or unfit to discharge the duties of the office;
(ii) the member has missed three consecutive meetings or has been absent from more than 50% of the meetings during any 12 consecutive meetings; or
(iii) to comply with the requirements of division (B)(3)(a) for member composition of the Board.
(f) At least two months before a Board member’s term expires, the Department shall solicit a recommended list of qualified members for the City vacancy as suggested by the City Council and the Department for consideration by the Mayor. The County Commission will appoint its representatives to the Board. The list shall include a brief biography describing the qualifications of each candidate. From the list, as modified or enlarged by the appointing authority, appointments to the Board will be made.
(g) Candidates appointed shall be notified in writing, and the candidate must accept or reject the appointment in writing.
(h) Unless a member retires or is removed, each member shall serve until a successor has been appointed.
(i) If a vacancy occurs for reasons other than expiration of a term, the Department shall promptly utilize the procedure described in division (e) above. Each vacancy shall be filled by the authority that appointed the departing member. The replacement member shall serve for the remainder of the unexpired term.
(4) Four members present shall constitute a quorum. A quorum shall be present for all matters decided by a vote of the Board.
(5) Any action, order or decision of the Board requires a simple majority vote of the members present, except for adoption, amendment or repeal of a Board regulation, in which case the concurrence of four members shall be required.
(6) All officers of the Board shall be elected annually by the Board for one-year terms. No officer shall serve in the same position for more than two consecutive years at a time.
(7) The Board may adopt rules to govern its proceedings. Such rules shall not take effect until reviewed and approved by the City Attorney and County Attorney.
(C) The Board shall meet in public facilities with public seating available.
(D) The Board shall meet monthly if a quorum is available unless a meeting is unnecessary or delayed for good reason. The Board shall hold a minimum of six monthly meetings a year. Special additional meetings may be held as needed.
(E) Notice of time, place and agenda of meetings, work sessions, committee meetings, hearings, any other gathering of a quorum of the Board, and subcommittee meetings shall be published according to the requirements of law, including the Open Meetings Act. Meetings, work sessions, committee meetings, hearings and any other gathering of a quorum of the Board, and subcommittee meetings shall be open to the public and shall follow the procedures described in the Open Meetings Act.
(F) In addition to any requirements applicable to each member based on the member’s appointing authority as set forth in the City and County codes of conduct, any member of the Board who has a conflict of interest regarding a matter before the Board shall disqualify himself or herself from the discussion and shall abstain from the vote on such matter. If a potential conflict of interest is raised during a meeting a member of the board shall submit the question to the entire Board for a determination of whether disqualification is necessary. The member with the potential conflict being voted on shall not vote in this determination. The Board's determination of whether disqualification is necessary shall be final. In the event a member is made aware of a conflict of interest requiring disqualification or abstention outside of a meeting, the member shall disclose the potential conflict of interest to the board and may seek guidance concerning disqualification from the board attorney or seek an advisory opinion from the County or City, as applicable to each member based on the member’s appointing authority. A conflict of interest means any interest which may yield, directly or indirectly any monetary or other material benefit to the Board member or the member’s spouse or minor child.
(G) The City Environmental Planning Commission (EPC) and the County Planning Commission (CPC) may appoint a member of the EPC and of the CPC, respectively, to be liaisons to the Air Quality Control Board. The EPC and CPC liaisons may attend Board meetings and may participate in Board discussions, but will not be members of the Board and will not vote. The respective liaisons may communicate with the Board and their respective planning commissions regarding air quality issues.
(H) The City shall provide the administrative support it deems necessary to the Board to assist the Board with carrying out the administrative functions of its powers and duties under the Air Quality Control Act. Nothing herein shall limit the City’s authority and ability to maintain full oversight and control over City resources.
(1) The Department shall attend all meetings of the Board, but not be entitled to a vote. The Department shall record all transactions and proceedings of the Board. The Department shall handle correspondence, keep records, prepare reports, and perform such other duties as the City may direct or authorize to carry out the administrative functions of the City and Board’s powers and duties under the Air Quality Control Act.
(2) The Director is the custodian of all files and records of the Board and the Board shall provide such files and records to the Director upon request.
(3) The Director shall be an ex officio member of the Board and may meet with the Board, but does not have a vote. Nothing herein limits or waives ex parte communication prohibitions which shall apply to the Director.
(4) Staff may be an employee of the City but shall not include such employee’s supervisory staff.
(5) In the exercise of any of its powers or duties, the Board may act with legal advice received in accordance with the Open Meetings Act, Chapter 10, Article 15, NMSA 1978. Such legal advice shall be provided by the City. Such legal research shall be distributed to all Board members. Legal advice and legal research shall only be requested with the concurrence of four Board members. An attorney to the Board shall not be a member of the Board or serve as an ex-officio member, and shall act only in an advisory capacity. The Board shall not delegate its authority to the Board’s attorney.
§ 9-5-1-4 DUTIES AND POWERS OF THE BOARD.
(A) The Board, in accordance with the Air Quality Control Act, shall prevent or abate Air Pollution within the City and County.
(B) The Board shall:
(1) Adopt, promulgate, publish, amend and repeal regulations consistent with the Air Quality Control Act and §§ 9-5-1-1 et seq. 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 Board’s jurisdiction, or any part thereof; and
(2) Adopt a plan for the regulation, control, prevention or abatement of Air Pollution, recognizing the differences, needs, requirements and conditions within the County or any part thereof.
(C) Regulations adopted by the Board may:
(1) Include regulations to protect visibility in Mandatory Class I Areas, to prevent significant deterioration of air quality and to achieve national ambient air quality standards in nonattainment areas, provided that such regulations:
(a) shall be no more stringent than but at least as stringent as required by the Federal Act and federal regulations pertaining to visibility protection in Mandatory Class I Areas, pertaining to prevention of significant deterioration and pertaining to nonattainment areas; and
(b) Shall be applicable only to sources subject to such regulation pursuant to the Federal Act;
(2) Prescribe standards of performance for Sources and Emission Standards for Hazardous Air Pollutants that, except as provided in division (3) below:
(a) Shall be no more stringent than but at least as stringent as required by federal standards of performance; and
(b) Shall be applicable only to sources subject to such federal standards of performance;
(3) Include regulations governing emissions from solid waste incinerators that shall be as least as stringent as, and may be more stringent than, any applicable federal emission limitations:
(4) Require notice to the Department of the intent to introduce or allow the introduction of an air contaminant into the air within the geographical area of the 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 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 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.
§ 9-5-1-5 DUTIES AND POWERS OF THE DEPARTMENT.
The Department shall:
(A) Administer and enforce the provisions of the Air Quality Control Act, §§ 9-5-1-1 et seq. and any regulations adopted pursuant thereto and any other laws relating to Air Pollution applicable within the City and the County. The Department shall perform, within the boundaries of the County, all functions delegated to the New Mexico Environment Department under the Act, except for the duties and powers reserved exclusively for the Environment Department.
(B) Develop facts and make investigations and studies consistent with the Air Quality Control Act and §§ 9-5-1-1 et seq., and in connection therewith, enter at all reasonable times in or upon any private or public property, except private residences, that the Department has reasonable cause to believe is or will become a source of air contaminants 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 thereof shall be furnished to the owner or occupant of the premises before the action is filed.
(C) Institute legal proceedings to compel compliance with the Air Quality Control Act, §§ 9-5-1-1 et seq., or any regulation of the Board.
(D) Encourage and make every reasonable effort to obtain voluntary cooperation by the owner or occupants to preserve, restore or improve air purity.
(E) 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, §§ 9-5-1-1 et seq., regulations in force, pursuant thereto, or any other provision of law.
(F) Establish a small business stationary source technical and environmental compliance assistance program, consistent with the provisions of Section 507 of the Federal Act.
(G) Accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government or from any person.
(H) Classify and record air contaminant sources that in its judgment, may cause or contribute to air pollution, according to levels and types of emissions and other characteristics that relate to air pollution, provided that classifications may be for application to the County as a whole or to any designated area of the City or County, and shall be made with special reference to the effects on health, economic and social factors and physical effects on property.
(I) Develop and present to the 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 as established by §§ 9-5-1-1 et seq.
§ 9-5-1-6 ADOPTION OF REGULATIONS; NOTICE AND HEARING.
(A) Any person may recommend or propose regulations to the Board for adoption.
(B) Persons interested in recommending or proposing regulations shall engage other interested persons, the Department, and any other relevant regulatory entities in the regulation development process. The petition shall identify the activities undertaken for development of the proposed regulation text and how the petitioner engaged other interested persons, the Department, and any other relevant regulatory entities. Failure to solicit and consider the positions of others may result in the denial of a hearing.
(C) The Board shall determine whether to hold a hearing within 60 days of the submission of a proposed regulation. In addition to other applicable notice requirements, notice of the Board’s intention to consider whether to hold a hearing shall be given at least 15 days prior to the meeting at which the matter will be considered. At a minimum, notice shall be posted in the lobby of City Hall and County offices; electronically on the Board’s web site; and in writing to the Director. The notice shall state the subject, the time and the place of the meeting and the manner in which interested persons may obtain relevant information and present their views.
(D) No regulation or emission control requirement shall be adopted until after a public hearing by the Board. As used in this section, REGULATION includes any amendment or repeal thereof.
(E) Notice of hearing shall be given at least 30 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 subject shall include a summary of the full text of the proposed rule and a short explanation of the purpose of the proposed rule with reasonable specificity. 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 City and County. Reasonable effort shall be made to give notice to all persons who have made a written request to the Board for advance notice of its hearings.
(F) The Board shall not consider alternate proposals at the hearing, though it can consider modifications to a proposal which simply deletes, clarifies or elaborates on elements of the already-submitted proposal without adding or changing substantive new obligations or requirements.
(G) At the hearing, the Board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the Board.
(H) The Board shall designate a hearing officer to take evidence in the hearing.
(I) All hearings shall be recorded verbatim and any transcription costs shall be borne by the petitioner.
(J) At no time before a petition is expected to be filed and at no time between the filing of a petition and the final decision of the Board or withdrawal of the petition or related regulatory action shall any person have ex parte communication.
(K) No regulation or emission control requirement shall be filed under the State Rules Act, Sections 14-3-24, 14-3-25, 14-4-1 through 14-4-9 NMSA 1978, until at least 60 days after it is presented by the Department to City Council. No regulation or emission control requirement adopted by the Board shall become effective until 30 days after its filing under the State Rules Act, Sections 14-3-24, 14-3-25, 14-4-1 through 14-4-9 NMSA 1978.
(L) A copy of adopted air quality control regulations shall be on file in the office of the City Clerk and shall be available for inspection by the public during regular business hours. Copies of the regulations shall be available to any person upon request and payment of a reasonable charge set by the Mayor.
§ 9-5-1-7 PERMITS; APPEALS; FEES.
(A) By regulation, the Board shall require:
(1) Any person intending to construct or modify any source, except as otherwise specifically provided by regulation, to obtain a construction permit from the Department prior to such construction or modification; and
(2) Any person intending to operate any source for which an operating permit is required pursuant to the 1990 amendments to the Federal Act, except as otherwise specifically provided by regulation, to obtain an operating permit from the Department.
(B) Regulations adopted by the Board shall include at least the following provisions:
(1) Requirements for the submission of relevant information, including but not limited to information the Department deems necessary to ensure that regulations and standards under §§ 9-5-1-1 et seq., the Air Quality Control Act 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 on a construction permit application may not exceed:
(a) One hundred and eighty days after the application is determined to be complete, if the application is not affected by requirements for prevention of significant deterioration; or
(b) Two hundred and forty days after the application is determined to be complete, if the application is affected by requirements for prevention of significant deterioration;
(3) 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 include provisions requiring that notice be given to the New Mexico Environment Department of all applications by any source that emits, or has a Potential Emission Rate of 100 tons per year or more of any Regulated Air Contaminant, including any source of fugitive emissions of any Regulated Air Contaminant, at least 60 days prior to the date on which construction or major modification is to commence;
(4) A schedule of construction permit fees sufficient to cover:
(a) The reasonable costs of reviewing and acting upon any application for such permit; and
(b) The reasonable costs of implementing and enforcing the terms and conditions of the permit, excluding any court or other costs associated with an enforcement action.
(5) A schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the Federal Act;
(6) 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
(7) For an operating permit only:
(a) Provisions, consistent with Sections 502(b) and 505(b) of the Federal Act, that require:
1. Notice to and review and comment by the United States Environmental Protection Agency (EPA); and
2. If the Department receives notice of objection from the United States Environmental Protection Agency before the operating permit is issued, the Department shall not issue the permit unless the permit is revised and issued pursuant to 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) The Department may deny any application for:
(1) A construction permit if it appears that the construction or modification will not meet applicable requirements of §§ 9- 5-1-1 et seq., the Air Quality Control Act, the Federal Act or any regulation adopted pursuant thereto; or
(2) An operating permit if:
(a) The source for which the permit is sought will emit a hazardous air pollutant or any air contaminant in excess of a federal standard of performance or a regulation of the Board; or
(b) It appears that the source for which the permit is sought will cause or contribute to air contaminant levels in excess of any national, state or applicable local ambient air quality standard; or
(c) Any other provision of §§ 9-5-1-1 et seq. and the Air Quality Control Act or the Federal Act will be violated.
(D) The Department may specify conditions to any permit granted under this section, including:
(1) For a construction permit, a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the requirements of §§ 9-5-1-1 et seq., the Air Quality Control Act, the Federal Act or any regulations promulgated pursuant thereto; and
(2) For an operating permit:
(a) Imposition of, 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 operating permit application, whichever is most stringent;
(b) Compliance with applicable federal standards of performance;
(c) Imposition of reasonable restrictions and limitations not relating to emission limits or emission rates; or
(d) Any combination of the conditions listed above.
(E) This section does not authorize the Department to require the use of machinery, devices or equipment from a particular manufacturer if the federal standards of performance, regulations of the Board and permit conditions may be met by machinery, devices or equipment otherwise available.
(F) The issuance of a construction or operating permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act, §§ 9-5-1-1 et seq. or any applicable regulations of the Board. Any conditions placed upon a permit by the Department shall be enforceable to the same extent as a regulation of the Board.
(G) Any person who participated in a permitting action before the Department shall be notified by the Department of the action taken by the Department and the reasons for the action. Notification of the applicant shall be by certified mail.
(H) Any person who participated in a permitting action before the Department and who is adversely affected by such permitting action may file a petition for hearing before the Board. The petition shall be made in writing to the Board within 30 days from the date notice is given of the Department’s action. Unless a timely request for hearing is made, the decision of the Department shall be final.
(I) If a timely petition for hearing is made, the Board shall hold a hearing within 90 days after receipt of the petition. The 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 Board to substantially affect the public interest, the 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 Board shall designate a hearing officer to take evidence in the hearing. All hearings shall be recorded verbatim and any transcription and administrative costs shall be borne by the petitioner.
(K) The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the Board shall sustain, modify or reverse the action of the Department.
(L) At no time before a petition is expected to be filed and at no time between the filing of a petition and the final decision of the Board or withdrawal of the petition or related permit action shall any person have ex parte communication.
(M) 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 Board or the court of appeals that a new source will or will not meet applicable local, state and federal air pollution standards and regulations shall be conclusive and is binding on every city, county and state agency, and as an issue before any such agency shall be deemed resolved in accordance with that final decision.
(N) Fees collected pursuant to this section shall be deposited in a fund created pursuant, to Section 74-2-16 NMSA 1978 if collected pursuant to a permit regulation adopted by the Board pursuant to this section.
§ 9-5-1-8 VARIANCES.
(A) The Board may grant an individual variance from the limitations prescribed under the Air Quality Control Act, §§ 9-5-1- 1 et seq., any regulation of the Board, or any permit condition imposed by the Department whenever it is found, upon presentation of adequate proof:
(1) That compliance with any part of the Air Quality Control Act, §§ 9-5-1-1 et seq., any regulation of the 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 standard.
(B) No variance shall be granted pursuant to this section until the 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 therefore, 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; If the variance is granted on the ground that compliance with the particular requirement or requirements 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 Board, is requisite for the taking of the necessary measures. A variance granted on the ground specified in this division (2) shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable; or
(2) 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 divisions (1) and (2) of this division (C), 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 Director. The Director shall promptly investigate the petition and make a recommendation to the Board as to the disposition of the petition.
(E) Upon receiving the recommendation of the Director on the variance, the Board shall:
(1) If the recommendation of the Director favors a variance, hold a public hearing prior to the granting of any variance; and
(2) If 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.
(G) At no time before a petition is expected to be filed and at no time between the filing of a petition and the final decision of the Board or withdrawal of the petition or related variance action shall any person have ex parte communication.
§ 9-5-1-9 JUDICIAL REVIEW; ADMINISTRATIVE ACTIONS.
(A) Any person adversely affected by an administrative action taken by the Board or the Director may appeal to the Court of Appeals. All appeals shall be upon the record made at the hearing and shall be taken to the Court of Appeals within 30 days following the date of the action being appealed.
(B) For appeals of regulations, the date of the action shall be the date of the filing of the regulation by the Board pursuant to the State Rules Act, Sections 14-3-24, 14-3-25, and 14-4-1 through 14-4-9 NMSA 1978.
(C) Upon appeal, the Court of Appeals shall set aside the action only if found to be:
(1) Arbitrary, capricious or an abuse of discretion;
(2) Not supported by substantial evidence in the record; or
(3) Otherwise not in accordance with law.
(D) After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted:
(1) By the Board or the Director, whichever took the action being appealed; or
(2) By the Court of Appeals if the Board or the Director denies a stay or fails to act upon an application for a stay within 60 days after receipt of the application.
§ 9-5-1-10 EMERGENCY POWERS OF THE DIRECTOR.
(A) Notwithstanding any other provision of the Air Quality Control Act, §§ 9-5-1-1 et seq., or any regulation of the Board, if the Director of the Department determines that a source or combination of sources presents an imminent and substantial endangerment to the public health or welfare or to the environment, the Director may bring suit in the District Court for the County to restrain immediately any person causing or contributing to the alleged air pollution to stop the emission of air contaminants causing or contributing to such air pollution or to take such other action as may be necessary.
(B) If it is not practicable to assure prompt protection of the public health or welfare or the environment by commencement of a civil action, the 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 24 hours, unless the Director brings a civil action before the expiration of the 24 hours. If the Director brings an action within that time, the order shall be effective thereafter for 48 hours or for such longer period as may be authorized by the court pending litigation.
§ 9-5-1-11 CONFIDENTIAL INFORMATION.
(A) Any records, reports or information obtained under the Air Quality Control Act or §§ 9-5-1-1 et seq. by the Board or the Department shall be available to the public, except that upon a satisfactory showing by any person to the Director or the Board that records, reports or information, except emission data, or particular parts thereof, to which the Director or the 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 Director or the Board, as applicable, shall consider such record, report or information, or particular portion thereof, confidential in accordance with the provisions of Section 14-2-1 NMSA 1978 and 18 U.S.C. Section 1905, except that such record, report or other information may be disclosed:
(1) To other officers, employees or authorized representatives of the Department or the 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 Board shall adopt regulations to implement this section, including regulations specifying those business records entitled to treatment as confidential records.
§ 9-5-1-12 LIMITATIONS ON AUTHORITY AND REGULATIONS.
(A) Sections 9-5-1-1 et seq. do not:
(1) Authorize the 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;
(2) Grant to the 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
(3) Supersede or limit the applicability of any law relating to industrial health, safety or sanitation.
(B) The Board shall have no authority to:
(1) Make any regulation to address quality of life impacts absent scientific evidence that there is a nexus to air pollution by identifying the quantities and durations of air contaminants that may, with reasonable probability, cause injury;
(2) Adopt or amend a standard or regulation whereby the impact on industrial development is by design and not a consequence of preventing or abating air pollution;
(3) Expand the definition of air pollution;
(4) Serve as a forum for public discussion for matters not on the agenda;
(5) Draft and present to itself regulations, except it may adopt bylaws to govern its non-hearing proceedings in accordance with § 9-5-1-3(B)(7);
(6) Direct the work of the Director or Department, including no authority, express or implied, to advise, recommend or determine costs associated with Board activities and the City’s ability to pay such costs;
(7) Recommend to the Mayor, Director, Department, County Manager, City Council, or County Commission policies for air quality matters, needs, improvements, and programs;
(8) Advise the Mayor, Director, Department, County Manager, City Council, or County Commission regarding air quality matters, needs and programs; and
(9) Advise the Environmental Planning Commission or County Planning Commission regarding air quality matters.
§ 9-5-1-13 LOCAL AIR QUALITY PERMIT FUND ESTABLISHED.
(A) Pursuant to Section 74-2-16 NMSA 1978 and §§ 9-5-1-1 et seq., an Environmental Health Department air quality permit fund is established.
(B) All fees collected by the Department pursuant to §§ 9-5-1-1 et seq. shall be deposited in the fund created in division (A) above, and shall be used by the City only for the purpose of paying the reasonable costs of funding the department’s performance of the following permitting functions required by the Federal Clean Air Act Amendments of 1990 as follows:
(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 demonstration; and
(6) Preparing inventories and tracking emissions.
§ 9-5-1-14 INSPECTION.
The Director or an authorized representative, upon presentation of Departmental 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 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 Board or any permit condition; and
(2) Inspect any monitoring equipment and method required by regulations of the Board or by any permit condition; and
(3) Sample any emissions that are required to be sampled pursuant to regulation of the Board or any permit condition.
(C) If premises described in divisions (A) or (B) above are unoccupied, a Department employee shall first make a reasonable effort to locate the owner or other person having charge or control of the premises and demand entry.
(D) If entry is refused, the Department shall proceed to obtain a search warrant by filing the documents and following the procedures required by the Metropolitan Court or District Court. The sworn statement filed in conjunction with the application for the search warrant or order shall:
(1) Set forth the particular premises, or portion thereof, sought to be inspected;
(2) State that the owner or occupant of the premises or portion thereof, has refused entry;
(3) State that inspection of the premises or portion thereof is necessary to determine whether it complies with the requirements of §§ 9-5-1-1 et seq.;
(4) Set forth the particular provisions of §§ 9-5-1-1 et seq. sought to be enforced;
(5) Set forth any other reason necessitating the inspection, including knowledge or belief that a particular condition exists in the premises, or portion thereof, which constitutes a violation of §§ 9-5-1-1 et seq.; and
(6) State that the Department or the Department’s designated representative is authorized by the Mayor to make the inspection.
§ 9-5-1-15 REPRESENTATION OF THE DEPARTMENT, THE CITY AND THE COUNTY.
In any court action to enforce the provisions of the Air Quality Control Act, §§ 9-5-1-1 et seq. or any regulation, permit condition or emergency order adopted, imposed or issued pursuant thereto:
(A) The City and the Department shall be represented by the City Attorney; and
(B) The County or City Attorney shall be represented by the District Attorney.
§ 9-5-1-98 VIOLATIONS; COMPLIANCE ORDERS; FIELD CITATIONS.
(A) Whenever, on the basis of any information, the Director determines that any person has violated or is violating any requirement, or prohibition of the Air Quality Control Act, §§ 9-5-1-1 et seq., any regulation promulgated pursuant to §§ 9-5-1-1 et seq., or any condition of a permit issued pursuant thereto, the Director may:
(1) Issue a compliance order 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 any 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) Any order issued pursuant to division (A) above may include a suspension or revocation of any permit, or portion thereof, issued by the Director. Any penalty assessed in the order shall not exceed $15,000 per day of noncompliance for each violation.
(C) Any order issued pursuant to division (A) above shall become final unless, no later than 30 days after the order is served, the person named therein submits a written request to the Director for a public hearing. Upon such request, the Director shall promptly conduct a public hearing. The Director shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward the hearing officer’s recommendation based thereon to the Director, who shall make the final decision.
(D) The Board may adopt a field citation program through regulations establishing appropriate minor violations for which field citations assessing civil penalties not to exceed $1,000 per day of violation may be issued by officers or employees of the Department as designated by the Director. The program will be implemented by the Department.
(E) Any person to whom a field citation is issued pursuant to division (D) above may, within a reasonable time as prescribed by regulation by the Board, elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final.
(F) Payment of a civil penalty required by a field citation issued pursuant to division (D) above shall not be a defense to further enforcement by the Department to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act or §§ 9-5-1-1 et seq. if the violation continues.
(G) In determining the amount of any penalty to be assessed pursuant to this section, the Director or the individual 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 any proceeding under this section, the Director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.
(I) Penalties collected pursuant to an administrative order or a field citation shall be deposited in the City or the County general fund, as applicable.
§ 9-5-1-99 PENALTY.
(A) Civil Penalty. Any person who violates any provision of the Air Quality Control Act, §§ 9-5-1-1 et seq., any regulation of the Board or any permit condition or emergency order adopted or issued pursuant to the Air Quality Control Act or §§ 9-5-1-1 et seq. may be assessed a civil penalty not to exceed $15,000 for each day during any portion of which a violation occurs.
(B) Criminal Penalties.
(1) Any person who knowingly commits any violation of §§ 9-5-1-1 et seq. or a regulation of the Board which is not described as a felony in Section 74-2-14.C or 74-2-14.D NMSA 1978 is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
(2) Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under the Air Quality Control Act or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method to be maintained under the Air Quality Control Act or §§ 9-5-1-1 et seq. or regulation adopted pursuant thereto is guilty of a petty misdemeanor and shall, upon conviction, be punished by a fine of not more than $10,000, per day for each violation, or by imprisonment for not more than six months, or by both.”
Section 3. SEVERABILITY CLAUSE. If any section, paragraph, sentence, clause, word, or phrase of this ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. The Council hereby declares that it would have passed this ordinance and each section, paragraph, sentence, clause, word, or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
Section 4. COMPILATION. This ordinance shall be incorporated in and made part of the Revised Ordinances of Albuquerque, New Mexico 1994.
Section 5. EFFECTIVE DATE. This ordinance shall take effect December 3, 2023.
X:\CL\SHARE\CL-Staff\_Legislative Staff\Legislation\25 Council\O-88final.docx