N.M. Code R. § 20.11.41.32

Current through Register Vol. 35, No. 12, June 25, 2024

Section 20.11.41.32 - ACCELERATED REVIEW OF APPLICATION

A.Request for accelerated review of application: As provided by the state act at NMSA 1978 Section 74-2-7(B)(8) and (9), an applicant may request accelerated review if the applicant complies with the following requirements and all other requirements of 20.11.41.32 NMAC:

(1)20.11.41.12 NMAC, Fees for Permit Application Review;

(2)20.11.41.13 NMAC, Application for Permit;

(3)20.11.41.15 NMAC, Public Information Hearing;

(4)20.11.41.16 NMAC, Permit Decisions and Air Board Hearing on the Merits;

(5)20.11.41.18 NMAC, Applicant's Additional Legal Responsibilities;

(6)20.11.41.19 NMAC, Permit Conditions;

(7)20.11.41.20 NMAC, Permit Cancellation, Suspension or Revocation;

(8)20.11.41.21 NMAC, Permittee's Obligation to Inform the Department and Deliver an Annual Emissions Inventory;

(9)20.11.41.22 NMAC, Performance Testing;

(10)20.11.41.23 NMAC, Temporary Relocation of Portable Stationary Sources;

(11)20.11.41.24 NMAC, Emergency Permits;

(12)20.11.41.25 NMAC, Nonattainment Area Requirements;

(13)20.11.41.26 NMAC, Compliance Certification;

(14)20.11.41.27 NMAC, Enforcement;

(15)20.11.41.28 NMAC, Administrative and Technical Permit Revisions;

(16)20.11.41.29 NMAC, Permit Modification;

(17)20.11.41.30 NMAC, Permit Reopening, Revision and Reissuance;

(18)20.11.41.31 NMAC, General Construction Permits; and

(19)20.11.41.33 NMAC, Significant Ambient Concentrations - Nonattainment.

B.Public notice provided by the department: The department shall provide the public notice as required by Paragraphs (1) through (9) of Subsection B of 20.11.41.14 NMAC.

C.Qualified outside contractors:

(1) The department shall request proposals from persons interested in providing assistance as a qualified outside contractor in the accelerated review of permit applications pursuant to 20.11.41 NMAC.

(2) The department shall evaluate the proposals submitted by the interested persons. To be eligible to contract with the department as a qualified outside contractor, a person must be:

(a) legally qualified to contract with the department; and

(b) qualified to assist the department in review of permit applications, as determined by the department.

(3) Persons who are selected as qualified outside contractors shall be under contract with the department to provide accelerated review of permit applications pursuant to 20.11.41.32 NMAC.

D.Requests for accelerated review:

(1) An applicant for a permit pursuant to 20.11.41 NMAC may request accelerated permit review of the application by a qualified outside contractor. Applications for accelerated review shall be preceded by a pre-application meeting between the applicant and the department. Requests for accelerated review shall not be granted unless there is at least one qualified outside contractor under contract with the department as required by Paragraph (3) of Subsection C of 20.11.41.32 NMAC. If there are no persons under contract to provide accelerated review, the department shall review the application in accordance with 20.11.41.16 NMAC.

(2) A request for accelerated permit review shall be submitted with the permit application and a certified check or money order in the amount of the accelerated review filing fee as required by 20.11.2 NMAC. The department shall notify the applicant of the names and addresses of the qualified outside contractors. The applicant shall deliver a copy of the application, by mail or hand delivery, to each qualified outside contractor identified by the department, unless the applicant is aware of a conflict of interest.

(3) Applicants who have chosen accelerated review pursuant to 20.11.41.32 NMAC shall pay the accelerated review fee required by 20.11.2 NMAC in addition to all other applicable fees imposed by 20.11.2 NMAC.

(4) Participation in the accelerated permit review process shall not relieve the applicant of any responsibilities imposed by a board regulation.

(5) Qualified outside contractors under contract that are interested in performing accelerated review of a specific application shall submit to the department:

(a) a statement of interest;

(b) a statement of qualifications for the specific application;

(c) an estimate of:

(i) the cost for the review;

(ii) the schedule for the review; and

(d) a notarized affidavit attesting that no conflict of interest exists regarding the specific permit application.

(6) The department shall review the submittals and determine which persons qualify to review a specific application.

(7) If no qualified outside person meets the requirements of Paragraph (5) of Subsection D of 20.11.41.32 NMAC, the department shall impose the accelerated review filing fee and the permit application review fee required by 20.11.2 NMAC and review the application on an accelerated schedule without the assistance of a qualified outside contractor and as required by 20.11.41.16 NMAC.

(8) Before the department determines whether an application for accelerated review is administratively complete, the department shall provide the applicant with a written bid summary of the qualified outside contractor submittals that shows the costs of the accelerated review and the anticipated schedule for reviewing the application, drafting the permit and issuing the permit. The department shall determine whether an application for accelerated review is administratively complete.

(9)Applicant's responsibilities for response to bid summary:

(a) Within five working days after the applicant receives the department's bid summary, the applicant shall either:

(i) submit to the department a written recommendation asking the department to accept one of the accelerated review bids, or a prioritized list of more than one of the accelerated review bids, including a brief justification for the recommendation, with a certified check or money order payable to the department in the amount specified in the bid summary and a notarized affidavit attesting that no conflict of interest exists regarding the applicant's recommended selections; or

(ii) submit to the department a written withdrawal of the request for accelerated review.

(b) The department shall deem the applicant's request for accelerated review withdrawn if the applicant fails to submit a written recommendation or written withdrawal within five working days after the applicant has received the department's bid summary unless the applicant has submitted a written request for an extension and the department has granted an extension in writing.

(10)Department's selection of qualified outside contractor:

(a) If the request for accelerated review is withdrawn, the department shall retain the accelerated review filing fee required by 20.11.2 NMAC and shall review the application without the assistance of a qualified outside contractor and pursuant to 20.11.41.16 NMAC.

(b) If the applicant recommends a qualified submittal, the department shall determine whether to accept the recommended submittal. If the department accepts the recommended submittal, the department shall instruct the qualified outside contractor to begin review of the application. If the department rejects the recommended submittal, the department shall inform the applicant and allow the applicant to recommend an alternate submittal pursuant to Paragraph (9) of Subsection D of 20.11.41.32 NMAC or, if there are no other qualified submittals, the department shall retain the accelerated review filing fee required by 20.11.2 NMAC and review the application without the assistance of a qualified outside contractor pursuant to 20.11.41.16 NMAC.

E.Disclosure of conflict of interest during accelerated review:

(1) The applicant and the qualified outside contractor have a continuing obligation to investigate potential conflicts of interest and to immediately disclose any conflict of interest to the department in writing. If a conflict of interest is not disclosed as required by Subparagraph (d) of Paragraph (5) of Subsection D of 20.11.41.32 NMAC and is later disclosed or discovered, the department may:

(a) deny the application pursuant to Subsection F of 20.11.41.17 NMAC;

(b) terminate accelerated review and review the application pursuant to 20.11.41.16 NMAC; or

(c) allow accelerated review to continue after elimination of the conflict.

(2) In choosing among the options provided by Subparagraphs (a)-(c) of Paragraph (1) of Subsection E of 20.11.41.32 NMAC, the department shall consider whether the conflict of interest was disclosed or discovered, the timing of the disclosure or discovery, the applicant's diligence in investigating potential conflicts of interest, any indication of intentional or willful failure to disclose, the significance of the conflict of interest, and the applicant's ability to eliminate the conflict of interest in a timely manner.

F.Issuance of a permit after accelerated review:

(1) Upon completion of the review, the qualified outside contractor shall provide the department with a draft permit and all documentation pertaining to the permit application, including all communications, notes and drafts. At any time during the review, the qualified outside contractor shall provide the department with all documentation pertaining to a specific application requested by the department in writing. The documentation shall be subject to the Inspection of Public Records Act, Chapter 14, Article 2 NMSA 1978, and the confidential information section of the state act at NMSA 1978, Section 74-2-11.

(2) The department shall review the analysis prepared by the qualified outside contractor and shall issue the permit, issue the permit subject to conditions or deny the requested permit pursuant to 20.11.41.17 NMAC. The department retains final authority to accept or reject the qualified outside contractor's analysis regarding the permit application.

(3) The department shall not issue the permit until the applicant has paid both the accelerated review processing fee and the permit review fee required by 20.11.2 NMAC.

N.M. Code R. § 20.11.41.32

20.11.41.32 NMAC - N, 1/1/14, Amended by New Mexico Register, Volume XXVIII, Issue 22, November 28, 2017, eff. 12/13/2017