2021 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 2 - Air Pollution
Section 74-2-4 - Local authority.
A. A county or municipality meeting the qualifications set forth in Paragraph (1) or (2) of Subsection J of Section 74-2-2 NMSA 1978 may assume jurisdiction as a local authority by adopting an ordinance providing for the local administration and enforcement of the Air Quality Control Act. The ordinance shall:
(1) create a local board to perform, within the boundaries of the local authority, those functions delegated to the environmental improvement board under the Air Quality Control Act, except any functions reserved exclusively for the environmental improvement board;
(2) create a local agency to administer and enforce the provisions of the Air Quality Control Act within the boundaries of the local authority that shall, within the boundaries of the local authority, perform all of the duties required of the department and exert all of the powers granted to the department, except for those duties and powers reserved exclusively for the department; and
(3) provide for the appointment of a director who shall perform for the local authority the same duties as required of the secretary under the Air Quality Control Act, except the duties and powers reserved exclusively for the secretary.
B. At least a majority of the members of a local board shall be individuals who represent the public interest and do not derive any significant portion of their income from persons subject to or who appear before the local board on issues related to the federal act or the Air Quality Control Act.
C. Prior to adopting any ordinance regulating air pollution, public hearings and consultations shall be held as directed by the local authority adopting the ordinance. The provisions of any ordinance shall be consistent with the substantive provisions of the Air Quality Control Act and shall provide for standards and regulations not lower than those required by regulations adopted by the environmental improvement board.
D. Notwithstanding the provisions of Subsection A of this section, the environmental improvement board and the secretary shall retain jurisdiction and control for the administration and enforcement of the Air Quality Control Act as determined in that act with respect to any act or failure to act, governmental or proprietary, of any local authority that causes or contributes to air pollution, including proceeding against a local authority as provided in Section 74-2-12 NMSA 1978. "Failure to act", as used in this section, includes failure to act against any person violating the applicable ordinance or regulation adopted pursuant thereto.
E. Any local authority that is located within a transportation-related pollutant nonattainment area or maintenance area may provide for a vehicle emission inspection and maintenance program for vehicles registered at an address within the jurisdiction of the local authority and under twenty-six thousand pounds gross vehicle weight rating powered by an internal combustion engine, which program shall be at least as stringent as that required under the federal act or under federal air quality standards. Any two or more local authorities may adopt identical rules and regulations necessary to implement the vehicle emission inspection and maintenance program, including examining the alternatives of public or private operation of the program.
F. Any local authority that has implemented a vehicle emission inspection and maintenance program may extend the enforcement of that program by entering into joint powers agreements with any municipality or county within the designated airshed or with the department.
G. No tax shall be imposed to fund any vehicle emission inspection and maintenance program until the local authority has submitted the question of imposition of a tax to the registered voters of the local authority and those registered voters have approved the imposition of the tax.
H. A local authority having a vehicle emission inspection and maintenance program shall conduct the vehicle emission inspection and maintenance program through a decentralized privately owned and operated system unless air quality emissions result in automatic implementation of another type of program under the terms of a contingency plan required and approved by the United States environmental protection agency. The local authority shall set the emission inspection fee by ordinance.
I. A local authority having a vehicle emission inspection and maintenance program is authorized to adopt rules, regulations and guidelines governing the establishment of private vehicle emission inspection and maintenance stations. No private vehicle emission inspection and maintenance station shall test vehicles unless the station possesses a valid permit issued by the local agency. Permit fees shall be determined by ordinance of the local authority and shall not exceed two hundred dollars ($200) per year per station. Additionally, a local authority may charge a permit fee of up to thirty-five dollars ($35.00) per year for each vehicle emissions mechanic and for each vehicle emissions inspector. The imposition of permit fees does not require a vote of the registered voters of the local authority.
J. Before a local authority adopts an ordinance that is more stringent than the federal act or applicable federal regulations, or that applies to sources not subject to regulation pursuant to the federal act or regulations, the local authority shall make a determination, based on substantial evidence and after notice and public hearing, that the proposed ordinance will be more protective of public health and the environment.
History: 1953 Comp., § 12-14-4, enacted by Laws 1967, ch. 277, § 4; 1970, ch. 58, § 3; 1971, ch. 277, § 22; 1973, ch. 322, § 3; 1981, ch. 373, § 2; 1985, ch. 95, § 1; 1988, ch. 128, § 1; 1989, ch. 278, § 3; 1990, ch. 31, § 2; 1992, ch. 20, § 3; 1994, ch. 131, § 1; 1995, ch. 128, § 1; 2021, ch. 133, § 1.
ANNOTATIONSCross references. — For definition of "class A county," see 4-44-1 NMSA 1978.
For the meaning of "federal act", see Paragraph F of 74-2-2 NMSA 1978 and notes thereto.
The 2021 amendment, effective July 1, 2021, required that a local authority's decision to adopt an ordinance regulating air pollution that is more stringent than the federal act or applicable federal regulations, or that applies to sources not subject to regulation pursuant to the federal act or regulations, be based on substantial evidence after notice and public hearing, and clarified provisions of the section; in Subsection E, after "maintenance program for vehicles", added "registered at an address within the jurisdiction of the local authority and", after "gross vehicle weight", added "rating", and after "program shall be", deleted "no more" and added "at least as"; and added Subsection J.
The 1995 amendment, effective June 16, 1995, inserted "or maintenance area" in the first sentence in Subsection E, and deleted "contiguous" preceding "municipality" in Subsection F.
The 1994 amendment, effective May 18, 1994, rewrote Subsection H, which read: "No vehicle emission inspection fee may be imposed by a local authority that exceeds two dollars ($2.00) for each vehicle subject to an emission inspection and maintenance program. The above fee limitation shall not limit any charges for vehicle inspections by a private vehicle emission inspection and maintenance station."
The 1992 amendment, effective March 5, 1992, rewrote this section to the extent that a detailed comparison would be impracticable.
Localities may impose criminal penalties for violations of act. — This article does not expressly deny to counties and municipalities the power to impose criminal penalties for violations of the act, thus such penalties are valid under N.M. Const., art. X, § 6. Chapman v. Luna, 1984-NMSC-029, 101 N.M. 59, 678 P.2d 687, cert. denied, 474 U.S. 947, 106 S. Ct. 345, 88 L. Ed. 2d 292 (1985).
State has primary responsibility for assuring compliance with the air quality within the state and where a city or county assumes authority for all air quality programs within a region, the state retains responsibility to act if the city or county cannot or does not act and the state may be sanctioned for failing to assure compliance of the air quality within the region under the Clean Air Act. N.M. Envtl. Improvement Div. v. Thomas, 789 F.2d 825 (10th Cir. 1986).
Adoption of environmental justice principles. — The Albuquerque-Bernalillo county air quality control board has the authority to promulgate regulations that incorporate environmental justice principles, which provide that a government agency should notify the public, and factor in public testimony regarding a company's environmental impact on the community, particularly in a minority or impoverished community, prior to issuing a permit to that company, and to adopt directives requiring that environmental justice principles be incorporated into staff work, but those directives do not have a binding effect on the parties in the permitting process. 2008 Op. Att'y Gen. No. 08-03.
Air pollution controlled by subjecting entire state to regulatory authority. — Under this article, air pollution throughout the state is controlled by subjecting every area of the state to the regulatory authority of some board: either the environmental improvement board or a board created in accordance with this section. 1982 Op. Att'y Gen. No. 82-07.
Municipality not exempt from regulations adopted by county board. — Section 4-37-2 NMSA 1978 does not exempt a municipality from regulations adopted by a county air quality control board which has the authority to adopt regulations to prevent or abate air pollution within the geographic boundaries of that county. 1982 Op. Att'y Gen. No. 82-07.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 et seq.
What are "land-use and transportation controls" which may be imposed, under § 100(a)(2)(B) of Clean Air Act of 1970 (42 U.S.C.S. § 7405), to insure maintenance of national primary ambient air quality standards, 30 A.L.R. Fed. 156.
Federal requirements for public participation in adoption, submission, and approval of state implementation plans and revisions pursuant to § 110 of Clean Air Act (42 USCA § 7410), 151 A.L.R. Fed. 445.
39A C.J.S. Health and Environment § 130.
