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Albuquerque SIP: Part 7 (Reg 24. Variance Procedure) SIP effective 1993-04-26 to 2005-02-28

Regulatory Text: 

(Approved by EPA 02/23/93 (58 FR 10972) at 52.1620(c)(49) effective 04/26/93.)

24.01  Definition.  As used in this section, "petitioner" means a person seeking a variance from a regulation of the Board or limitation prescribed under the Air Pollution Control Regulations of the Albuquerque-Bernalillo County Air Quality Control Board.

24.02  Petitions.

     A.  Any person seeking a variance from a regulation of the Board, shall do so by filing a written petition with the Director.  Petition forms may be obtained from the Department.

     B.  Petitions shall:
          1.  State the petitioner's name and address.
          2.  State the date of the petition.
          3.  Describe the facility or activity for which the variance is sought.
          4.  State the address or description of the property upon which the facility is located.
          5.  Identify the regulation of the Board from which the variance is sought.
          6.  State in detail the extent to which the petitioner wishes to vary from the regulation or limitation.
          7.  State why the petitioner believes the variance is justified.
          8.  State the period of time for which the variance is desired.
          9.  Be signed by the petitioner or by some person in his behalf.  Where the person signing is not the petitioner it shall set forth his authority to sign.

24.03   Action by the Director.

     A.  Within forty-five (45) days after receipt of the variance petition, the Director shall make written recommendation to the Board and mail a copy of the recommendation to the petitioner.  The Director may, when the circumstances justify, extend the period of time by which he must submit his recommendation to the Board.  The Director shall notify the Board and the petitioner of the length of the extension.

     B.  The Director's recommendation shall:

          1.  State the date that it is made.
          2.  State the Director's recommendation.
          3.  State the Director's reason for the recommendation.

24.04    Action by the Board.

     A.  Within seven (7) days after the next regularly scheduled Board meeting following the date of the Director's recommendation:

          1.  If the Board initially favors the granting of a variance, the Director shall notify the petitioner by certified mail of the date, time and place of the public hearing.

          2.  If the Board is initially opposed to the granting of a variance, the Director shall notify the petitioner by certified mail of the Board's opposition, the reasons for its opposition and the fact that no public hearing will be held unless the petitioner requests one. The notice shall also inform the petitioner of the date by which he must request a public hearing.

     B.  If the petitioner fails to request a public hearing within fifteen (15) days of the date the notice of the Board's opposition is received by him, the petition shall be deemed denied, with prejudice.

     C.  If the petitioner makes a timely request for a public hearing, the Director shall, within five (5) days of the date of the receipt of the request, notify the petitioner by certified mail of the date, time and place of the hearing.

24.05   Notice.

     A.  At least seven (7) days prior to each hearing date, the Director shall publish notice of the date, time, place and subject of the variance hearing in a newspaper of general circulation in Bernalillo County.

     B.  The Director shall maintain a file of persons interested in variance hearings and shall make a reasonable effort to notify them by mail of any actions of the Director or Board taken subject to subsection 24.04.

24.06   Hearings--Actions by the Board--Written Order.

     A.  Public hearings shall be held before the Board not less than fifteen (15) days nor more than forty-five (45) days from the date the Director mails the notice of the hearing to the petitioner.

     B.  Public hearings shall be held at a location agreeable to the Board and the petitioner.

     C.  The Board may designate a hearing officer to take evidence at the hearing.

     D.  All of the costs of the hearing shall be borne by the petitioner, except those costs associated with Department witnesses or evidence.

     E.  A record shall be made at each hearing and an official transcript of the record shall be provided to the Board.

     F.  In variance hearings, the technical rules of evidence and the rules of civil procedure shall not apply, but the hearings shall be conducted so that all relevant views are amply and fairly presented without undue repetition.  The Board may require reasonable substantiation of statements or records tendered and may require any view to be stated in writing when the circumstances justify.

     G.  The Board shall allow all persons a reasonable opportunity at a hearing to submit written and oral evidence and arguments and to introduce exhibits.

     H.  The petitioner and the Board shall have the right to call and examine witnesses, introduce exhibits and cross-examine persons who testify.

     I.  The Board shall allow reasonable cross-examination of persons who testify at a hearing by persons who have submitted a written request to do so.  Requests must be submitted to the Director by 4:00 p.m. on the day before each hearing.

     J.  A petitioner may represent himself at the hearing or be represented by any other individual.

     K.  The Board may grant the requested variance, in whole or in part, or may deny the variance.  All action taken by the Board shall be by written order by the next regularly scheduled Board meeting after each hearing, or, if the hearing was conducted before a hearing officer, by the next regularly scheduled Board meeting after the date the transcript of the hearing is available.  A copy of the order shall be mailed to the petitioner.  All persons appearing or represented at the hearing shall be mailed notice of the Board's action.

     L.  Orders of the Board shall:

          1.  State the petitioner's name and address.
          2.  State the date the order is made
          3.  Describe the facility for which the variance is sought.
          4.  Identify the regulation of the Board from which the variance was sought.
          5.  Sate the decision of the Board.
          6.  If a variance is granted, state the period of time for which it is granted and specify a compliance schedule.
          7.  State the reasons for the Board's decision.

The Director shall maintain a file of all orders made by the Board.  The file shall be open for public inspection.

24.07   Effect of Order of Board--Failure to Appear at Hearing.

     A.  An order of the Board is final and bars the petitioner from petitioning for the same variance without special permission from the Board.  The Board may consider, among other things, the development of new information and techniques to be sufficient justification for a second petition.

     B.  If the petitioner or his authorized representative fails to appear at the public hearing on the variance petition the Board shall proceed with the hearing on the basis of the petition.

24.08   Stay of Enforcement.

     A.  Subject to the emergency provisions of Section 12-14-9, NMSA, 1953, as amended, while a variance petition is pending and before the Board takes final action on the petition, the Department may not enforce the corresponding regulation of the Board from which the variance is sought unless, in the opinion of the Director:

          1.  Enforcement is reasonably necessary to protect the public interest of Bernalillo County.
          2.  The variance petition was not filed in good faith.
          3.  The petitioner is causing or contributing to air pollution to a greater degree than that requested by the variance petition.

     B.  The petitioner may submit with his variance a petition, a statement showing why he believes that non-enforcement is in the public interest of Bernalillo County.

     C.  The Director's opinion on the questions of public interest and good faith is discretionary and not subject to review.

     D.  The Director may re-examine his opinion at any time and when the circumstances justify, make a different determination.

     E.  Provisions of subsection 24.08 do not apply to any subsequent petitions for the same variance by the same petitioner, except as the Director may otherwise determine.

24.09   Timelines.

     A.  When the last day for performing an act falls on Saturday, Sunday or a legal, state or national holiday, the performance of the act is timely if performed on the next succeeding day which is not a Saturday, Sunday or a legal, state, or national holiday.

     B.  All matters required to be filed or mailed under this regulation are timely if deposited in the United State mail on or before the required date, except as provided under subsection 24.06 (I).

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