New Mexico Statutes
Article 2 - Air Pollution
Section 74-2-5 - Duties and powers; environmental improvement board; local board.

A. The environmental improvement board or the local board shall prevent or abate air pollution.
B. The environmental improvement board or the local board shall:
(1) adopt, promulgate, publish, amend and repeal rules and standards consistent with the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution, including:
(a) rules prescribing air standards within the geographic area of the environmental improvement board's jurisdiction or the local board's jurisdiction or any part thereof; and
(b) standards of performance that limit carbon dioxide emissions to no more than one thousand one hundred pounds per megawatt-hour on and after January 1, 2023 for a new or existing source that is an electric generating facility with an original installed capacity exceeding three hundred megawatts and that uses coal as a fuel source; and
(2) adopt a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions within the geographic area of the environmental improvement board's jurisdiction or the local board's jurisdiction or any part thereof.
C. If the environmental improvement board or the local board determines that emissions from sources within the environmental improvement board's jurisdiction or the local board's jurisdiction cause or contribute to ozone concentrations in excess of ninety-five percent of the primary national ambient air quality standard for ozone promulgated pursuant to the federal act, the environmental improvement board or the local board shall adopt a plan, including rules, to control emissions of oxides of nitrogen and volatile organic compounds to provide for attainment and maintenance of the standard. Rules adopted pursuant to this subsection shall be limited to sources of emissions within the area of the state where the ozone concentrations exceed ninety-five percent of the primary national ambient air quality standard.
D. Rules adopted by the environmental improvement board or the local board may:
(1) include rules to protect visibility in mandatory class I areas to prevent significant deterioration of air quality and to achieve national ambient air quality standards in nonattainment areas; provided that the rules shall be at least as stringent as required by the federal act and federal regulations pertaining to visibility protection in mandatory class I areas, pertaining to prevention of significant deterioration and pertaining to nonattainment areas;
(2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that shall be at least as stringent as required by federal standards of performance;
(3) include rules governing emissions from solid waste incinerators that shall be at least as stringent as any applicable federal emission limitations;
(4) include rules requiring the installation of control technology for mercury emissions that removes the greater of what is achievable with best available control technology or ninety percent of the mercury from the input fuel for all coal-fired power plants, except for coal-fired power plants constructed and generating electric power and energy before July 1, 2007;
(5) require notice to the department or the local agency of the intent to introduce or permit the introduction of an air contaminant into the air within the geographical area of the environmental improvement board's jurisdiction or the local board's jurisdiction; and
(6) require any person emitting any air contaminant to:
(a) install, use and maintain emission monitoring devices;
(b) sample emissions in accordance with methods and at locations and intervals as may be prescribed by the environmental improvement board or the local board;
(c) establish and maintain records of the nature and amount of emissions;
(d) submit reports regarding the nature and amounts of emissions and the performance of emission control devices; and
(e) provide any other reasonable information relating to the emission of air contaminants.
E. Any rule adopted pursuant to this section shall be at least as stringent as federal law, if any, relating to control of motor vehicle emissions.
F. In making its rules, the environmental improvement board or the local board shall give weight it deems appropriate to all facts and circumstances, including:
(1) character and degree of injury to or interference with health, welfare, visibility and property;
(2) the public interest, including the social and economic value of the sources and subjects of air contaminants; and
(3) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved.
G. Before the environmental improvement board or local board adopts a rule that is more stringent than the federal act or federal regulations, or that applies to sources not subject to regulation pursuant to the federal act or regulations, the environmental improvement board or local board shall make a determination, based on substantial evidence and after notice and public hearing, that the proposed rule will be more protective of public health and the environment.
History: 1953 Comp., § 12-14-5, enacted by Laws 1967, ch. 277, § 5; 1970, ch. 58, § 4; 1972, ch. 51, § 3; 1979, ch. 393, § 2; 1981, ch. 373, § 3; 1983, ch. 34, § 2; 1987, ch. 293, § 1; 1990, ch. 99, § 66; 1992, ch. 20, § 4; 2007, ch. 143, § 1; 2019, ch. 65, § 36; 2021, ch. 133, § 2.
Cross references. — For definitions of "board" and "federal act," see 74-2-2 NMSA 1978.
The 2021 amendment, effective July 1, 2021, provided that if there is a determination that emissions from sources within the environmental improvement board's or local board's jurisdiction cause or contribute to ozone concentrations in excess of ninety-five percent of the primary national ambient air quality standard for ozone promulgated pursuant to the federal act, the environmental improvement board or the local board must adopt a plan to control emissions of oxides of nitrogen and volatile organic compounds to provide for attainment and maintenance of the standard, and removed provisions prohibiting the environmental improvement board and the local board from adopting certain types of state air quality regulations and standards more stringent than federal regulations and standards; added new Subsection C and redesignated former Subsections C through E as Subsection D through F, respectively; in Subsection D, Paragraph D(1), after "shall be", deleted "no more stringent than but", and deleted Subparagraph D(1)(b), Paragraph D(2), after "hazardous air pollutants that", deleted "except as provided in this subsection and in Subparagraph (b) of Paragraph (1) of Subsection B of this section", after "shall be", deleted "no more stringent than but", and deleted former Subparagraph D(2)(b), in Paragraph D(3), after "as stringent as", deleted "and may be more stringent than"; in Subsection E, after "this section shall be", deleted "consistent with" and added "at least as stringent as"; and added Subsection G.
The 2019 amendment, effective June 14, 2019, required the environmental improvement board to promulgate rules and standards of performance that limit carbon dioxide emissions to no more than 1,100 lbs. per megawatt-hour on and after January 1, 2023 for electric facilities with an original installed capacity exceeding 300 megawatts and that uses coal as a fuel source; in Subsection B, Paragraph B(1), after "repeal", deleted "regulations" and added "rules and standards", added new subparagraph designation "(a)", in Subparagraph B(1)(a), added "rules", and added Subparagraph B(1)(b); and in Subsection C, replaced "regulations" with "rules", and in Paragraph C(2), after "as provided in this subsection", added "and in Subparagraph (b) of Paragraph (1) of Subsection B of this section".
The 2007 amendment, effective June 15, 2007, added Paragraph (4) of Subsection C providing the installation of control technology for mercury emissions for coal power plants other than those generating energy before July 1, 2007.
The 1992 amendment, effective March 5, 1992, substituted the present section catchline for "Duties and powers of board"; inserted "environmental improvement board" in Subsection A, rewrote the provisions of former Subsection B and redesignated them as present Subsections B, C, and D; and deleted former Subsections C, D, and E, relating to notice of intent to introduce air contaminants, compacts with other states, and installation of monitoring devices, samples, records, and reports respectively.
Board's authority limited to pollution control. — Administrative bodies are the creatures of statutes, and as such they have no common-law or inherent powers and can act only as to those matters which are within the scope of the authority delegated to them. The legislative mandate under this article is that the board should prevent or abate air pollution, and although the authority granted to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent or policy, such an approach to construction does not warrant allowing an administrative agency to amend or enlarge its authority under the guise of making rules and regulations. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
No authority to plan industrial development. — There is nothing in the board's mandate that gives it the authority to plan for the industrial development of any area in the state; although the standards and regulations promulgated by the board will have an impact on the industrial development of the area, such an impact should be as a consequence, not by design. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
No authority to require more restrictive standards than federal regulations. — There is no authority given to the board to promulgate regulations more restrictive than those under federal law in order for New Mexico to regain control over its air. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Board's regulation following federal requirements not automatically illegal. — The board's adoption of a regulation which adheres to federal requirements does not create the automatic conclusion that it has ignored its obligations under state law. Kennecott Copper Corp. v. N.M. Envtl. Improvement Bd., 1980-NMCA-007, 94 N.M. 610, 614 P.2d 22, cert. denied, 94 N.M. 675, 615 P.2d 992.
Substantial evidence required to support regulations. — There is no substantial evidence in the record to support one of the board's final reasons for adopting amended regulations as to sulfur dioxide emissions, namely, because of their effects on visibility, since by definition sulfur dioxide in a gaseous form is a heavy colorless nonflammable gas of pungent suffocating odor, and whether sulfur dioxide emissions can or do combine with other elements in the atmosphere to produce a visible gas, or whatever, is not shown in the record. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Substantial evidence not required for every particular. — Regulations adopted by a board, pursuant to this section after substantial compliance with the public hearing requirements, need not be supported by substantial evidence in every material portion thereof. Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd., 1969-NMCA-089, 80 N.M. 633, 459 P.2d 159.
Board bound by its standard. — The board, in promulgating an ambient air quality standard, establishes the criterion for determining what concentration or quantity of sulfur dioxide in the specified time periods constitutes air pollution; it makes the judgment that concentrations over the quantity prescribed would injure health, interfere with visibility and adversely affect the public welfare. Having set the standard, it is bound by it, the same as anyone else. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Modification authorized to prevent pollution. — The board has the continuing authority to change the ambient air quality standard for sulfur dioxide after proper notice and hearing and to adopt regulations to implement or explain it, but it may not set a new standard or adopt regulations implementing or explaining it for any reason other than to prevent or abate air pollution. Public Serv. Co. v. N.M. Envtl. Improvement Bd., 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Board obligated to amend standards to comply with federal requirements. — When New Mexico standards are amended and thus made more stringent in order to comply with federal requirements, the board is doing no more than it is obliged to do by its mandate under the federal Clean Air Act. Kennecott Copper Corp. v. N.M. Envtl. Improvement Bd., 1980-NMCA-007, 94 N.M. 610, 614 P.2d 22, cert. denied, 94 N.M. 675, 615 P.2d 992.
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.
Responsibility for enforcing act. — Enforcement of New Mexico regulations and standards more stringent than, or in addition to, the federal standards and regulations is the state's responsibility; the environmental improvement board has state-wide responsibility for enforcing this article, but the Albuquerque-Bernalillo county air quality control board has this responsibility in the Albuquerque-Bernalillo county area. 1987 Op. Att'y Gen. No. 87-11.
Requiring use of oxygenated fuels. — The environmental improvement board and/or the Albuquerque-Bernalillo county air quality control board may require the use of oxygenated fuels without violating the constitutional prohibition against interference with interstate commerce, but may only do so if that requirement is contained in the state's implementation plan. 1987 Op. Att'y Gen. No. 87-11.
Upon showing of present or future need for new standard. — New emission regulations may be adopted by the board if there is substantial evidence in the record of a present or reasonably anticipated future need for a stricter regulation in order to prevent air pollution in excess of the standard. Thus, if the board can demonstrate that reasonably anticipated future growth in the area will, as a factual matter, result in pollution emissions which exceed present ambient air standards, the board may enact stricter regulations for both existing and proposed sources. The board may act to prevent or abate air pollution when presented with persuasive evidence that emission sources are growing in number and that the totality of new and existing emissions will, if left at presently regulated rates, exceed the ambient air quality standard. 1977 Op. Att'y Gen. No. 77-15.
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).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 150 et seq.
Validity of regulation of smoke and other air pollution, 78 A.L.R.2d 1305.
Air pollution control: validity of legislation permitting administrative agency to fix permissible standards of pollutant emission, 48 A.L.R.3d 326.
Validity of state and local air pollution administrative rules, 74 A.L.R.4th 566.
Construction and application of preemption sections (§§ 208, 210(c)(4)) of Clean Air Act (42 U.S.C.S. §§ 1857f-6a, 1857f-6c(c)(4)), 18 A.L.R. Fed. 971.
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. § 1857c-5(a)(2)(B)), to insure maintenance of national primary ambient air quality standards, 30 A.L.R. Fed. 156.
Construction, applicability and effect of § 304 of Clean Air Amendments of 1970 (42 U.S.C.S. § 1857h-2) in actions against alleged violators, 37 A.L.R. Fed. 320, 85 A.L.R. Fed. 118.
Clean Air Act implementation plans for nonattainment areas, 90 A.L.R. Fed. 481.
Decisions of Environmental Protection Agency (EPA) approving or disapproving state implementation plans as interfering with primary role of states to determine how national ambient air quality standards should be met under Clean Air Act (42 USCA §§ 7401 et seq.), 151 A.L.R. Fed. 495.
39A C.J.S. Health and Environment § 130.