A. The environmental improvement board or the local board may grant an individual variance from the limitations prescribed under the Air Quality Control Act, 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.

History: 1953 Comp., § 12-14-8, enacted by Laws 1967, ch. 277, § 8; 1970, ch. 58, § 6; 1973, ch. 322, § 5; 1979, ch. 393, § 4; 1992, ch. 20, § 9.

Cross references. — For definitions of "board" and "director", see 74-2-2 NMSA 1978.

The 1992 amendment, effective March 5, 1992, revised the internal subsection designations in Subsection A, added Subsection A(2)(b), substituted "environmental improvement board or the local board" for "board" several times throughout the section, substituted "secretary or the director" for "director" several times throughout the section, added all of the present language of the first sentence of Subsection D following "director", and made stylistic changes throughout the section.

Criterion for denial of variance. — Board may deny variance when the air pollution that would result from granting variance would with reasonable probability injure health, but board may not deny variance upon mere showing that condition tends to cause harm. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Air Quality Standards' margin of safety does not contemplate excursions beyond legal limits. — Petitioner's argument that Congress, by allowing an adequate margin of safety, not only contemplated but countenanced occasional excursions beyond the limits of the National Ambient Air Quality Standards is meritless since it is clear that the margin of safety protects against effects which have not yet been uncovered by research or whose medical significance is a matter of disagreement. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMCA-058, 102 N.M. 8, 690 P.2d 451.

Board may rely on division's modeling results to deny variance application. — The environmental improvement board may rely on the environmental improvement division's modeling results, showing particulate concentrations in excess of the legal limit, in arriving at its decision to deny a lumber company's application for a variance from air quality control regulations. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMCA-058, 102 N.M. 8, 690 P.2d 451.

Smoke may be "injurious to health and safety". — Smoke, in a given situation, may be composed of elements which at a given density or opacity may be "injurious to health or safety," as these words are used in Subsection A, but something more than the percentage of opacity must be shown. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1980-NMCA-160, 95 N.M. 401, 622 P.2d 709, rev'd on other grounds, 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Burden of proving safety of variance on applicant. — The effect of the requirement of this section that the granting of the variance must not result in a condition injurious to health or safety is to impose the duty of proving a negative on the applicant for a variance. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1980-NMCA-160, 95 N.M. 401, 622 P.2d 709, rev'd on other grounds, 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Once party makes showing, burden of going forward shifts. — Once the party who seeks a variance and thus bears the burden of proof has made a prima facie showing, the burden of going forward with the evidence shifts to the opposing party. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1980-NMCA-160, 95 N.M. 401, 622 P.2d 709, rev'd on other grounds, 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Notice and hearing prerequisite to granting variance. — The environmental improvement board cannot grant a variance without first having given the public reasonable notice and a hearing on the contemplated variance. Where the notice of the hearing on a proposed amendment contains no mention of a variance, the board cannot legally grant a variance after the hearing. The order granting the variance is, therefore, void. 1976 Op. Att'y Gen. No. 76-23.

Law reviews. — For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).

For article, "Substantial Evidence Reconsidered: The Post-Duke City Difficulties and Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of variance provisions in state and local air pollution control laws and regulations, 66 A.L.R.4th 711.

39A C.J.S. Health and Environment § 135.