N.M. Code R. § 20.11.41.16
Current through Register Vol. 35, No. 12, June 25, 2024
Section 20.11.41.16 - PERMIT DECISION AND AIR BOARD HEARING ON THE MERITSA. Within 30 days after the department has received an application for a new permit or permit modification, the department shall review the application and determine whether it is administratively complete. (1) If the application is deemed administratively complete, the department shall send a letter by certified mail or electronic mail to the applicant stating the department's determination.(2) If the application is deemed administratively incomplete or the department determines a different type of permit application is required, the department shall send a letter by certified mail or electronic mail to the applicant stating what additional information or fees are necessary before the department can deem the application administratively complete. The department may require information that is necessary to perform a thorough review of the application including: technical clarifications, emission calculations, emission factor usage, additional application review fees if any are required by 20.11.2 NMAC and new or additional air dispersion modeling. The letter shall state a reasonable deadline for the applicant to deliver the information, fees or air dispersion modeling. The applicant shall deliver the requested information, fees or air dispersion modeling by the deadline set by the department. The department may extend the deadline for good cause as determined by the department. If the department does not receive the additional information, fees or modeling by the deadline, the department may deny the application. If the department has ruled an application administratively incomplete three times, the department shall deny the permit application and send a letter by certified mail or electronic mail to the applicant stating that the permit application has been denied. Fees submitted for processing an application that has been denied shall not be refunded. If the department has denied the application, the applicant may submit a new application and the fee required for a new application.(3) If the department determines the application is administratively complete but no permit is required, the department shall send a letter by certified mail or electronic mail to the applicant informing the applicant of the determination.B. Within 90 days after the department has deemed the application administratively complete, the department shall issue the permit, issue the permit subject to conditions or deny the permit as authorized by the state act, unless the director grants an extension for not more than 90 days for good cause, including scheduling a PIH. If an extension of the 90 day deadline is needed to review and make a decision regarding the application, then 90 days after the department has deemed the application administratively complete, the department shall notify the applicant by certified mail or electronic mail that an extension of time is required. The notification shall specify in detail the grounds for the extension.C. The department shall issue the permit, issue the permit subject to conditions or deny the requested permit or permit modification based on information contained in the department's administrative record of the permit application. The administrative record shall consist of the application, all other evidence submitted by the applicant, all evidence or written comments submitted by interested persons, all other evidence considered by the department, a statement of matters officially noticed and, if a PIH has been held, the PIH hearing record. The applicant has the burden of demonstrating that a permit should be issued.D. Every person who participated in a permitting action before the department shall be notified by the department of the action taken and the reasons for the action. A request to inspect or copy information contained in the department's administrative record of the permit application shall not be considered participation for purposes of Subsection D of 20.11.41.16 NMAC. The department shall notify the applicant by certified mail as required by the state act. Applicants that request expedited receipt of the notification instead of receiving notice by certified mail may deliver a written request to the department and have an authorized representative of the applicant pick up the notification at the department. The authorized representative shall acknowledge receipt of the notification in writing. The department shall notify all other participating persons by regular mail sent to the legible address the participating person has provided to the department. Notification by mail shall be deemed complete and received three days after mailing postage paid to the participating person's address provided to the department.E. A person who participated in a permitting action before the department and who is adversely affected by the permitting action may file a petition for hearing before the board. A request to inspect or copy shall not be considered participation for the purposes of Subsection E of 20.11.41.16 NMAC. The petition shall be in writing and shall be delivered to the board within 30 days from the date notice is given of the department's action. The petition shall conform to the requirements of Subsection B of 20.11.81.14 NMAC. The petitioner shall certify that a copy of the petition has been mailed or hand delivered to the applicant if the petitioner is not the applicant. A hearing before the board shall be conducted as required by 20.11.81 NMAC. Unless a timely request for a hearing is made, the decision of the department shall be final.F. If a timely request for a hearing is made, the board shall hold an adjudicatory hearing on the merits within 60 days of receipt of the petition as required by the state act at NMSA 1978, Section 74-2-7(I) and 20.11.81 NMAC. In the hearing before the board, the burden of proof shall be on the petitioner as required by the state act at NMSA 1978, Section 74-2-7(K).G. Any person adversely affected by an administrative action taken by the board may appeal in accordance with the state act at 74-2-9 NMSA 1978.N.M. Code R. § 20.11.41.16
20.11.41.16 NMAC - Rp, 20.11.41.15 NMAC, 1/1/14