New Mexico Statutes
Article 2 - Air Pollution
Section 74-2-2 - Definitions.

As used in the Air Quality Control Act:
A. "air contaminant" means a substance, including any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, micro-organisms, radioactive material, any combination thereof or any decay or reaction product thereof;
B. "air pollution" means 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;
C. "department" means the department of environment;
D. "director" means the administrative head of a local agency;
E. "emission limitation" or "emission standard" means a requirement established by the environmental improvement board or the local board, the department, the local authority or the local agency 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;
F. "federal act" means the federal Clean Air Act, its subsequent amendments and successor provisions;
G. "federal standard of performance" means a standard of performance, emission limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412;
H. "hazardous air pollutant" means an air contaminant that has been listed as a hazardous air pollutant pursuant to the federal act;
I. "local agency" means the administrative agency established by a local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978;
J. "local authority" means any of the following political subdivisions of the state that have, by following the procedure set forth in Subsection A of Section 74-2-4 NMSA 1978, assumed jurisdiction for local administration and enforcement of the Air Quality Control Act:
(1) a county that was a class A county as of January 1, 1980; or
(2) a municipality with a population greater than one hundred thousand located within a county that was a class A county as of January 1, 1980;
K. "local board" means a municipal, county or joint air quality control board created by a local authority;
L. "mandatory class I area" means any of the following areas in this state that were in existence on August 7, 1977:
(1) national wilderness areas that exceed five thousand acres in size; and
(2) national parks that exceed six thousand acres in size;
M. "modification" means a physical change in, or change in the method of operation of, a source that results in an increase in the potential emission rate of a regulated air contaminant emitted by the source or that results in the emission of a 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 environmental improvement board or the local 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 a natural gas curtailment or emergency allocation or an other lack of supply of natural gas;
N. "nonattainment area" means for an air contaminant an area that is designated "nonattainment" with respect to that contaminant within the meaning of Section 107(d) of the federal act;
O. "person" includes an individual, partnership, corporation, association, the state or political subdivision of the state and any agency, department or instrumentality of the United States and any of their officers, agents or employees;
P. "potential emission rate" means the emission rate of a source at its maximum capacity to emit a regulated air contaminant under its physical and operational design, provided any physical or operational limitation on the capacity of the source to emit a regulated air contaminant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its physical and operational design only if the limitation or the effect it would have on emissions is enforceable by the department or the local agency pursuant to the Air Quality Control Act or the federal act;
Q. "regulated air contaminant" means an air contaminant, the emission or ambient concentration of which is regulated pursuant to the Air Quality Control Act or the federal act;
R. "secretary" means the secretary of environment;
S. "significant deterioration" means an increase in the ambient concentrations of an 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;
T. "source" means a structure, building, equipment, facility, installation or operation that emits or may emit an air contaminant;
U. "standard of performance" means a requirement of continuous emission reduction, including any requirement relating to operation or maintenance of a source to assure continuous emission reduction;
V. "state implementation plan" means a plan submitted by New Mexico to the federal environmental protection agency pursuant to 42 U.S.C. Section 7410; and
W. "toxic air pollutant" means an air contaminant, except a hazardous air pollutant, classified by the environmental improvement board or the local board as a toxic air pollutant.
History: 1953 Comp., § 12-14-2, enacted by Laws 1967, ch. 277, § 2; 1970, ch. 58, § 1; 1971, ch. 277, § 20; 1972, ch. 51, § 2; 1973, ch. 322, § 1; 1977, ch. 253, § 36; 1979, ch. 393, § 1; 1981, ch. 373, § 1; 1983, ch. 34, § 1; 1989, ch. 278, § 2; 1992, ch. 20, § 1; 2001, ch. 133, § 1.
Cross references. — For the definition of "class A county", see 4-44-1 NMSA 1978.
For the federal Clean Air Act, see 42 U.S.C. § 7401 et seq. For Section 107 of that act, see 42 U.S.C. § 7407.
The 2001 amendment, effective June 15, 2001, substituted "listed" for "classified" in Subsection H; and rewrote Subsection P, which formerly read "'potential emission rate' means 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;".
The 1992 amendment, effective March 5, 1992, deleted former Subsections C and D, defining "board" and "delayed compliance order"; rewrote former Subsection E and redesignated it as present Subsection C; redesignated former Subsection F as present Subsection D, while substituting therein "a local agency" for "the department"; redesignated former Subsection G as present Subsection E, while inserting therein "environmental improvement board or the local" and "the local authority or the local agency"; deleted former Subsection H, defining "environmental improvement division"; rewrote former Subsection I and redesignated it as present Subsection F; redesignated former Subsections J and K as present Subsections G and H; added present Subsections I, J and K; inserted "environmental improvement board or the local" in Subsection M(3); rewrote Subsection N; added present Subsection R; redesignated former Subsections R through U as present Subsections S through V; added Subsection W; and made minor stylistic changes throughout the section.
Board may not expand definition of "air pollution" from "reasonable probability" of injury to health to a mere showing that condition "tends to cause harm." Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.
Air Quality Standards' margin of safety does not contemplate excursions beyond legal limits. — Petitioner's argument that Congress, by allowing an adequate margin of safety, not only contemplated but countenanced occasional excursions beyond the limits of the National Ambient Air Quality Standards is meritless since it is clear that the margin of safety protects against effects which have not yet been uncovered by research or whose medical significance is a matter of disagreement. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMCA-058, 102 N.M. 8, 690 P.2d 451.
Board may rely on division's modeling results to deny variance application. — The environmental improvement board may rely on the environmental improvement division's modeling results, showing particulate concentrations in excess of the legal limit, in arriving at its decision to deny a lumber company's application for a variance from air quality control regulations. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMCA-058, 102 N.M. 8, 690 P.2d 451.
Application of reasonable probability of injury standard not required during permitting process. — Where the city of Albuquerque environmental health department (EHD) issued an authority-to-construct permit to an oil company pursuant to the New Mexico Air Quality Control Act (AQCA), 74-2-1 to 74-2-17 NMSA 1978, and where the Albuquerque-Bernalillo county air quality control board (board) upheld the EHD's issuance of the permit, and where plaintiff appealed the board's order, claiming that EHD and the board each failed to apply a "reasonable probability of injury" standard when evaluating the permit, the board did not err in upholding EHD's issuance of the authority-to-construct permit, because 74-2-7 NMSA 1978 directs EHD and the board to determine whether local, state, and federal air pollution standards or federal regulations have been violated, but does not impose on EHD or the board a requirement to independently apply the reasonable probability of injury standard when considering whether to grant a permit. Southwest Organizing Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd., 2021-NMCA-005.
Requirement to consider community testimony met during permitting process. — Where the city of Albuquerque environmental health department (EHD) issued an authority-to-construct permit to an oil company pursuant to the New Mexico Air Quality Control Act (AQCA), 74-2-1 to 74-2-17 NMSA 1978, and where the Albuquerque-Bernalillo county air quality control board (board) upheld the EHD's issuance of the permit, and where plaintiff appealed the board's order, claiming that EHD, during the application process, and the board, at the later adjudicatory hearing, were required to consider community testimony regarding the oil company's effect on local resident quality of life, the board did not err in upholding EHD's issuance of the authority-to-construct permit, because EHD, during the initial application process, met the public comment requirement by holding a public information hearing, accepting pubic testimony about concerns for quality of life, and addressing written comments submitted before and during the hearing, and the board, during the hearings following the petition of EHD's decision to grant the permit, similarly permitted public testimony. EHD and the board, however, were not required to specifically address public testimony regarding quality of life issues in resolving the permit application. Southwest Organizing Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd., 2021-NMCA-005.
Public nuisance laws deemed alternative means of enforcement. — Where air quality standards or regulations have not been established as to what constitutes "air pollution" and thus no violation of this article or regulations and standards is apparent, New Mexico's public nuisance law may provide an alternative means for the environmental improvement division to abate noxious odors. 1978 Op. Att'y Gen. No. 78-12.
Law reviews. — For comment, "Delegation of Legislative Authority on the State Level; Environmental Protection in New Mexico: Public Service Co. of New Mexico et al. v. New Mexico Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977).
For article, "Substantial Evidence Reconsidered: The Post-Duke City Difficulties and Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988).