Section 74-2-8 - Variances.
74-2-8. Variances.
A. The environmental improvement board or the local board may grant an individual variance from the limitations prescribed under the Air Quality Control Act [Chapter 74, Article 2 NMSA 1978], any regulation of the environmental improvement board or the local board or any permit condition imposed by the department or the local agency whenever it is found, upon presentation of adequate proof:
(1) that compliance with any part of that act, any regulation of the environmental improvement board or the local board or any permit condition will:
(a) result in an arbitrary and unreasonable taking of property; or
(b) impose an undue economic burden upon any lawful business, occupation or activity; and
(2) that the granting of the variance will not:
(a) result in a condition injurious to health or safety; or
(b) cause or contribute to an air contaminant level in excess of any primary national ambient air quality standards.
B. No variance shall be granted pursuant to this section until the environmental improvement board or the local board has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges and the general public.
C. Any variance or renewal thereof shall be granted within the requirements of Subsection A of this section and for time periods and under conditions consistent with the reasons therefor and within the following limitations:
(1) if the variance is granted on the ground that there are no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available;
(2) if the variance is granted on the ground that compliance with the particular requirement from which variance is sought will necessitate the taking of measures that because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the environmental improvement board or the local board, is requisite for the taking of the necessary measures. A variance granted on the ground specified in this paragraph shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable; or
(3) if the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraphs (1) and (2) of this subsection, it shall be for not more than one year.
D. Any person seeking a variance shall do so by filing a petition for variance with the secretary or the director charged with implementation of the Air Quality Control Act at the site where the variance will apply. The secretary or the director shall promptly investigate the petition and make recommendation to his respective board as to the disposition of the petition.
E. Upon receiving the recommendation of the secretary or the director on the variance, the environmental improvement board or the local board shall:
(1) if the secretary or the director favors a variance, hold a public hearing prior to the granting of any variance; and
(2) if the secretary or the director is opposed to the granting of the variance, hold a hearing only upon the request of the petitioner.
F. In the hearing, the burden of proof shall be upon the petitioner.