(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;
(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 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 Board shall sustain, modify or reverse the action of the Department.
(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 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.
(M) 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.
('74 Code, § 6-16-7) (Ord. 13-1975; Am. Ord. 45-1984; Am. Ord. 65-1993)