2020 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 2 - Air Pollution
Section 74-2-6 - Adoption of regulations; notice and hearings.

A. Any person may recommend or propose regulations to the environmental improvement board or the local board for adoption. The environmental improvement board or the local board shall determine whether to hold a hearing within sixty days of submission of a proposed regulation.

B. No regulations or emission control requirement shall be adopted until after a public hearing by the environmental improvement board or the local board. As used in this section, "regulation" includes any amendment or repeal thereof. Hearings on regulations of nonstatewide application shall be held within that area that is substantially affected by the regulation. Hearings on regulations of statewide application may be held in Santa Fe or within any area of the state substantially affected by the regulation.

C. Notice of the hearing shall be given at least thirty 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 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 area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the environmental improvement board or the local board for advance notice of its hearings.

D. At the hearing, the environmental improvement board or the local 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 environmental improvement board or the local board.

E. The environmental improvement board or the local board may designate a hearing officer to take evidence in the hearing.

F. No regulations or emission control requirement adopted by the environmental improvement board or the local board shall become effective until thirty days after its filing under the State Rules Act [Chapter 14, Article 4 NMSA 1978].

History: 1953 Comp., § 12-14-6, enacted by Laws 1967, ch. 277, § 6; 1970, ch. 58, § 5; 1974, ch. 64, § 2; 1981, ch. 373, § 4; 1982, ch. 73, § 25; 1992, ch. 20, § 7.

Cross references. — For definition of "board", see 74-2-2 NMSA 1978.

For notice by publication, see 14-11-1 NMSA 1978 et seq.

The 1992 amendment, effective March 5, 1992, substituted "adoption" for "promulgation" in the first sentence of Subsection A, substituted "environmental improvement board or the local board" for "board" several times throughout the section, deleted former Subsection G relating to appeals, and made minor stylistic changes throughout the section.

Temporary provisions. — Laws 1992, ch. 20, § 22, effective March 5, 1992, provides that all rules, regulations and administrative determinations of the environmental improvement board or a local board created by any local air quality authority and the department of environment or the administrative agency of a local air quality authority pertaining to air quality that existed prior to the effective date of the 1992 amendments to the Air Quality Control Act (March 5, 1992) set forth in that act shall remain in effect after that date until repealed or amended unless in conflict with, prohibited by or inconsistent with, the provisions of the Air Quality Control Act, as amended, and provides that all enforcement actions taken before or after the effective date of the amendments to the Air Quality Control Act (March 5, 1992) set forth in this 1992 act shall be valid if based upon an act or failure to act that violated a provision of law or regulation in effect at the time of the act or failure to act.

Production at hearing of supporting substantial evidence not required. — An adjudicatory or trial-type hearing is not contemplated by this section; the validity of a regulation is not dependent upon support by substantial evidence adduced at a hearing. Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd., 1969-NMCA-089, 80 N.M. 633, 459 P.2d 159.

Notice and hearing prerequisite to granting variance. — The environmental improvement board cannot grant a variance without first having given the public reasonable notice and a hearing on the contemplated variance. Where the notice of the hearing on a proposed amendment contains no mention of a variance, the board cannot legally grant a variance after the hearing. The order granting the variance is, therefore, void. 1976 Op. Att'y Gen. No. 76-23.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 4.

Validity of state and local air pollution administrative rules, 74 A.L.R.4th 566.

39A C.J.S. Health and Environment §§ 138, 142.