TITLE 20 ENVIRONMENTAL
PROTECTION
CHAPTER 2 AIR
QUALITY (STATEWIDE)
PART 90 FIELD
CITATIONS
20.2.90.1 ISSUING
AGENCY. Environmental Improvement
Board.
[20.2.90.1 NMAC - N,
12/12/08]
20.2.90.2 SCOPE. This part applies to the field citation
program for minor violations of the Air Quality Control Act, NMSA 1978, Sections
74-2-1 to 74-2-17, the air quality regulations, 20.2 NMAC, and any permit
issued under the act or regulations.
[20.2.90.2 NMAC - N,
12/12/08]
20.2.90.3 STATUTORY
AUTHORITY. Environmental Improvement
Act, NMSA 1978, Section 74-1-8(A)(4), and Air Quality Control Act, NMSA 1978, Sections
74-2-1 to 74-2-17, including specifically NMSA 1978, Section 74-2-12.
[20.2.90.3 NMAC - N,
12/12/08]
20.2.90.4 DURATION. Permanent.
[20.2.90.4 NMAC - N,
12/12/08]
20.2.90.5 EFFECTIVE
DATE. 12/12/2008, except
where a later date is cited at the end of a section.
[20.2.90.5 NMAC - N,
12/12/08]
20.2.90.6 OBJECTIVE. The objective of this part is to implement
the provisions of NMSA 1978, Section 74-2-12 of the Air Quality Control Act
establishing a field citation program for minor violations of the act, air
quality regulations and permits issued under the act and regulations.
[20.2.90.6 NMAC - N,
12/12/08]
20.2.90.7 DEFINITIONS. As used in this part, the following definitions
apply. Terms defined in the act or regulations and not defined in this part are
used consistent with the meanings provided in the act or regulations.
A. "Act" means the Air Quality
Control Act, NMSA 1978, Sections 74-2-1 to 74-2-17.
B. "Air quality regulations" or
"regulations" mean the air quality (statewide) regulations compiled
at 20.2 NMAC.
C. "Department" means the New
Mexico environment department.
D. "Division" means the
environmental protection division of the department.
E. "Field citation" means a
written document issued by the division alleging a minor violation that sets
forth the nature of the alleged minor violation and, if applicable, an
assessment of a penalty.
F. "Hearing officer" means the
individual appointed by the secretary to conduct a proceeding under this part.
G. "Minor violation" means an
failure of a person to comply with any requirement or condition of any
applicable provision of the Air Quality Control Act, air quality regulations,
or a permit issued under the act or regulations that, with the exception of
minor violations of 20.2.60 NMAC, Open Burning, and 20.2.65 NMAC, Smoke
Management, meets all of the following criteria:
(1) does not result in or
contribute to, an increase in emissions of any air contaminant;
(2) does not cause an
increase in emissions of any toxic air contaminant in excess of any emission
standard or limitation or other state or federal requirement that is applicable
to that toxic air contaminant;
(3) does not cause or
contribute to the violation of any state or federal ambient air quality
standard; and
(4) does not hinder the
ability of the department to determine compliance with any other applicable air
quality state or federal law, rule, regulation, information request, order,
variance, permit, or other requirement.
H. "Party" means the appellant
and the division.
I. "Person" means an individual,
entity, source, facility, business or company.
J. "Secretary" means the
secretary of the department, or any person who assumes the role of secretary
for purposes of this part in the event of the secretary's disqualification,
recusal or delegation of authority to another person.
[20.2.90.7 NMAC - N,
12/12/08]
20.2.90.8 CONSTRUCTION. This part shall be liberally construed to
carry out its purpose.
[20.2.90.8 NMAC - N,
12/12/08]
20.2.90.9 SAVINGS
CLAUSE. Repeal or
supersession of prior versions of this part shall not affect any administrative
or judicial action initiated under those prior versions.
[20.2.90.9 NMAC - N,
12/12/08]
20.2.90.10 COMPLIANCE
WITH OTHER REGULATIONS.
Compliance with this part does not relieve a person from the responsibility to
comply with any other applicable federal, state, or local laws.
[20.2.90.10 NMAC -
N, 12/12/08]
20.2.90.11 to 20.2.90.107 [RESERVED]
20.2.90.108 GENERAL
PROVISIONS - COMPUTATION OF TIME. In computing any period of time prescribed or allowed by this part,
except as otherwise specifically provided, the day of the event from which the
designated period begins to run shall not be included. The last day of the
computed period shall be included, unless it is a Saturday, Sunday, or legal
state holiday, in which event the time is extended until the end of the next day,
which is not a Saturday, Sunday or legal state holiday. Whenever a party must
act within a prescribed period after service upon him, and service is by mail,
three days is added to the prescribed period. The three-day extension does not
apply to any deadline under the Air Quality Control Act.
[20.2.90.108 NMAC -
N, 12/12/08]
20.2.90.109 REQUIREMENTS. For the purposes of this part, the following
requirements shall apply to the issuance of, and response to, a field citation.
A. A person who is
issued a field citation pursuant to this part shall have the period specified
from the date of service of the field citation in which to achieve compliance.
Within five (5) working days of achieving compliance, the person who received
the field citation shall sign the citation, stating that the person has
complied with the citation and return it to the department address provided in
the citation. A false statement that compliance has been achieved shall
constitute a violation of this part.
B. The department
may require a person subject to a field citation to submit reasonable and
necessary information to support a claim of compliance.
C. Nothing in this
part shall be construed as preventing the re-inspection of a source or facility
to ensure that the minor violation(s) cited in the field citation has been
corrected.
D. Notwithstanding
any other provision of this part, if a person fails to comply with a field
citation within the prescribed period, or if the department determines that the
circumstances surrounding a particular minor violation are such that immediate
enforcement is warranted to prevent harm to any person(s) or to the
environment, the department may take any enforcement action authorized by law.
E. If a person
wishes to request a hearing on the alleged minor violation(s) cited or penalty
assessed in the field citation, the person may file a hearing request as
prescribed in 20.2.90.110 NMAC.
F. If
a person does not file a hearing request, that person shall pay the penalty
assessed in the field citation within thirty (30) calendar days of service of
the field citation.
G. Payment of a
penalty assessed in a field citation issued pursuant to this part shall not be
a defense to further enforcement by the department to correct a violation cited
in the field citation or to assess the maximum statutory penalty pursuant to
the Air Quality Control Act if the violation continues.
H. Any person who
fails to comply with the compliance requirements of a field citation by the
date specified or who fails to pay a penalty assessed within thirty (30)
calendar days of service of the field citation may be subject to further
enforcement action pursuant to the Air Quality Control Act.
I. The department
may issue a warning, without penalty, as a field citation for the first offense.
[20.2.90.109 NMAC -
N, 12/12/08]
20.2.90.110 FIELD
CITATIONS: HEARING REQUESTS.
A. Any person who
receives a field citation from the department may request a hearing before the department.
The request must be made in writing to the secretary within fifteen (15)
working days after the field citation has been issued, with completed
assessment of penalty, if any, and shall include a copy of the field citation.
Unless a hearing request is received by the secretary within fifteen (15)
working days after the field citation is issued, the decision of the department
shall be final.
B. If a hearing
request is received within the fifteen (15) working days time limit, the
secretary shall hold a hearing within fifteen (15) working days after receipt
of the request. The secretary shall notify the person who requested the hearing
of the date, time and place of the hearing by certified mail.
C. The
department shall present the field citation and supporting evidence first,
followed by the appellant who has the burden of proving no violation had
occurred and shall present any evidence to support the request for hearing.
D. Hearings shall
be held at a place designated by the secretary unless other mutually agreed
upon arrangements are made. The secretary may designate a hearing officer to
conduct the hearing and make a final decision or make recommendations for a
final decision. The secretary's hearing notice shall indicate who will conduct
the hearing and make the final decision.
E. Motions. All
motions, except those made orally during a hearing, shall be in writing,
specify the grounds for the motion, state the relief sought, and state whether
it is opposed or unopposed. Each motion may be accompanied by an affidavit,
certificate, or other evidence relied upon and shall be served upon the
secretary or hearing officer and the other parties. An unopposed motion shall
state that concurrence of all other parties was obtained. Any party upon whom
an opposed motion is served shall have an opportunity to file a response. To
expedite the proceedings, no replies shall be allowed except upon leave from
the hearing officer.
F. Discovery. No
discovery shall be allowed, including requests for admission, interrogatories,
and depositions.
G. Upon request,
the hearing shall be recorded. The person who requests the recording shall pay
recording costs.
H. In field
citation hearings, the rules governing civil procedure and evidence in district
court do not apply. Hearings shall be conducted so that all relevant views,
arguments and testimony are amply and fairly presented without undue
repetition. The secretary shall allow department staff and the hearing
requestor to call and examine witnesses, to submit written and oral evidence
and arguments, to introduce exhibits and to cross-examine persons who testify.
All testimony shall be taken under oath. At the end of the hearing, the
secretary shall decide and announce if the hearing record will remain open and
for how long and for what reason it will be left open.
I. Based upon the
evidence presented at the hearing, the secretary shall sustain, modify or
reverse the action of the department. The secretary's decision shall be by
written order within fifteen (15) working days following the close of the
hearing record. The decision shall state the reasons therefore and shall be
sent by certified mail to the hearing requestor and any other affected person
who requests notice. Appeals from the secretary's final decision are by NMSA
1978, Section 74-2-9.
J. Pursuant to
20.1.5.2 NMAC, these hearing procedures supersede the procedures provided in
20.1.5 NMAC.
[20.2.90.110 NMAC -
N, 12/12/08]
20.2.90.111 PENALTIES. First time violators of the field citation
rule who demonstrate cooperation in compliance may be fined up to one hundred
dollars ($100.00) per violation. First
time violators of the field citation rule who fail to demonstrate cooperation
in compliance may be fined up to two hundred dollars ($200.00) per
violation. Multiple time violators of
the field citation rule who demonstrate cooperation in compliance may be fined up
to five hundred dollars ($500.00) per violation. Multiple time violators of the
field citation rule who fail to demonstrate cooperation in compliance may be
fined up to one thousand dollars ($1,000.00) per violation. Provided, however,
that penalties assessed in a field citation shall not exceed one thousand
dollars ($1,000.00) per day per violation or a maximum of fifteen thousand
dollars ($15,000.00). In determining the
amount of a penalty to be assessed pursuant to this section, the person issuing
the field citation shall take into account the seriousness of the violation,
any good-faith effort to comply with the applicable requirements and other
relevant factors.
[20.2.90.111 NMAC -
N, 12/12/08]
20.2.90.112 SERVICE
OF FIELD CITATION. Service
of a field citation shall be accomplished by any of the following methods:
A. personal
service by a department representative who shall obtain the signature of a
person who is an owner, operator, employee, or representative of the source,
facility or property being inspected at the time the field citation is issued,
with a copy of the signed citation sent by certified first class mail to the facility’s operations headquarters
when appropriate; if such person refuses or fails to sign the field citation,
the failure or refusal to sign shall not affect the validity of service nor of
the citation or subsequent proceedings; or
B. service by
certified first class mail.
[20.2.90.112 NMAC -
N, 12/12/08]
HISTORY OF 20.2.90 NMAC: [RESERVED]