§ 282.81 - New Mexico State-Administered Program.

§ 282.81 New Mexico State-Administered Program.

Cross Reference

Link to an amendment published at 85 FR 53184, Aug. 28, 2020.

(a) History of the approval of New Mexico's Program. The State of New Mexico is approved to administer and enforce an underground storage tank program in lieu of the federal Federal program under Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991, et seq. The State's program, as administered by the New Mexico Environmental Improvement BoardEnvironment Department, was approved by EPA pursuant to 42 U.S.C. 6991c and part Part 281 of this Chapter. EPA approved the published the notice of final determination approving the New Mexico underground storage tank base program effective on August 21November 16, 1990 and it was effective on November 16, 1990. A subsequent program revision application was approved effective on October 27, 2020.

(b) Enforcement authority. New Mexico has primary responsibility for administering and enforcing its federally approved underground storage tank program. However, EPA retains the authority to exercise its corrective action, inspection and enforcement authorities under Subtitle I of RCRA sections 9003(h), 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, as well as under any other applicable statutory and regulatory provisions.

(c) Retaining Program Approval. To retain program approval, New Mexico must revise its approved program to adopt new changes to the federal Federal subtitle I program which make it more stringent, in accordance with RCRA section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If New Mexico obtains approval for the revised requirements pursuant to RCRA section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the Federal Register.

(d) Final Program Approval. New Mexico has final approval for the following elements of its program application originally submitted to EPA in New Mexico's program application for final approval and and approved effective November 16, 1990, and the program revision application approved by EPA effective on August 21, 1990. Copies may be obtained from the Underground Storage Tank Program, New Mexico Environmental Improvement Board, 1190 St. Francis Drive, Santa Fe, NM 87503. October 27, 2020:

(1) State statutes and regulations. -

(i) Incorporation by reference. The New Mexico provisions cited in this paragraph are incorporated by reference as part of the underground storage tank program under subtitle Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(A) New Mexico Statutory Requirements Applicable to the Underground Storage Tank Program, 1995.

(B) New Mexico

The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the New Mexico regulations that are incorporated by reference in this paragraph from New Mexico State Records Center and Archives, 1205 Camino Carlos Rey, Santa Fe, NM 87507; Phone number: (505)-476-7941; website http://164.64.110.134/nmac/. You may inspect all approved material at the EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270 (Phone number [phone] or the National Archives and Records Administration (NARA). For information on the availability of the material at NARA, email [e-mail] or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.

(A) “EPA-Approved New Mexico Statutory and Regulatory Requirements Applicable to the Underground Storage Tank

Program

Program”,

1995.

(ii) The following statutes and regulations are part of the approved state program, although not incorporated by reference herein for enforcement purposes.

June 2020. Only those provisions that have been approved by EPA are incorporated by reference. Those provisions are listed in Appendix A to Part 282.

(B) [Reserved]

(ii) Legal basis. EPA evaluated the following statutes and regulations which provide the legal basis for the State's implementation of the underground storage tank program, but they are not being incorporated by reference and do not replace Federal authorities:

(A) The statutory provisions include:

(1)

New Mexico Statutes Annotated (NMSA) 1978

Annotated, Chapter 74, Environmental Improvement.

(i) Article 4: Hazardous Wastes.

74-4-4.2 Permits; Issuance; Denial; Modification; Suspension; Revocation

74-4-4.3 Entry; Availability of Records

74-4-10 Enforcement; Compliance Orders; Civil Penalties

74-4-11 Penalty; Criminal

74-4-12 Penalty; Civil

74-4-13 Imminent Hazards; Authority of Director; Penalties

74-4-14 Administrative Actions; Judicial Review

(ii) Article 6: Water Quality.

74-6-7 Administrative Action; Judicial Review

74-6-10 Penalties Enforcement; Compliance Orders; Penalties; Assurance of Discontinuance

74-6-10.1 Civil Penalties

74-6-10.2 Criminal Penalties

74-6-11 Emergency; Powers of Delegated Constituent Agencies; Penalties

(iii) Article 6B: Ground Water Protection.

74-6B-5 Department's Right of Entry and Inspection

, as amended through May 16, 2018:

(1) Tax Administration Act, section 7-1-6.25;

(2) Department of Environment Act, sections 9-7A-2(A) through (C), 9-7A-3 through 9-7A-12;

(3) Open Meetings Act, sections 10-15-1 through 10-15-4;

(4) Inspection of Public Records Act, sections 14-2-1 through 14-2-12;

(5) State Rules Act, section 14-4-5.2;

(6) Environmental Improvement Act, sections 74-1-2, 74-1-3(A), (B), (D), and (F), 74-1-4 through 74-1-6, 74-1-7(A) introductory paragraph and (A)(13), 74-1-8(A) introductory paragraph and (A)(13), 74-1-8.1, 74-1-9, 74-1-10;

(7) Hazardous Waste Act, sections 74-4-2, 74-4-3(A) through (D), (F), (M), (N), (Q), and (V), 74-4-4 (except (A), (J), and (K)), 74-4-4.3, 74-4-4.8, 74-4-5, 74-4-7, 74-4-8, 74-4-10, 74-4-11(C), 74-4-12 through 74-4-14; and

(8) Groundwater Protection Act, sections 74-6B-2 through 74-6B-8, 74-6B-13, 74-6B-14.

(B) The regulatory provisions include: New Mexico Administrative Code (

1) State of New Mexico Environmental Improvement Board Underground Storage Tank Regulations.

(i) Part X: Administrative Review.

§ 1000 Informal Review

§ 1001 Review By the Director on Written Memoranda

§ 1002 Public Participation

(2) New Mexico Rules Governing Appeals From Compliance Orders Under the Hazardous Waste Act and the Solid Waste Act.

(i) Part I: General Provisions.

§ 101 Authority

§ 102 Scope of Rules; Applicability of Rules of Civil Procedure

§ 103 Definitions

§ 104 Use of Number and Gender

§ 105 Powers and Duties of the Director, Hearing Officer, and Hearing Clerk

§ 106 Computation and Extension of Time

§ 107 Ex Parte Discussions

§ 108 Examination of Documents Filed

§ 109 Settlement; Consent Agreement

(ii) Part II: Document Requirements.

§ 201 Filing, Service, and Form of Documents

§ 202 Filing and Service of Documents Issued by Hearing Officer

§ 203 Compliance Order

§ 204 Request for Hearing; Answer to Compliance Order

§ 205 Notice of Docketing; Notice of Hearing Officer Assignment

§ 206 Motions

(iii) Part III: Prehearing Procedures and Discovery.

§ 301 General Rules Regarding Discovery

§ 302 Identity of Witnesses

§ 303 Production of Documents

§ 304 Request for Admissions

§ 305 Subpoenas

§ 306 Other Discovery

(iv) Part IV: Hearing Procedures.

§ 401 Scheduling the Hearing

§ 402 Evidence

§ 403 Objections and Offers of Proof

§ 404 Burden of Presentation; Burden of Persuasion

(v) Part V: Post-Hearing Procedures.

§ 501 Filing the Transcript

§ 502 Proposed Findings, Conclusions and Orders

§ 503 Recommended Decision

§ 504 Final Order by Director

§ 505 Judicial Review

(vi) Part VI: Miscellaneous Provisions.

§ 601 Liberal Construction

§ 602 Severability

§ 603 Supersession of Prior Rules

§ 604 Savings Clause

(iii) The following statutory and regulatory provisions are broader in scope than the federal

NMAC) Title 20 Environmental Protection, Chapter 5 Petroleum Storage Tanks, as amended effective July 24, 2018: Part 107 General Operating Requirements for Underground Storage Tank Systems, section 20.5.107.712 Department Review and Approval of Plans, Installation, Operation, and Maintenance;

Part 116 Delivery Prohibition; Part 123 Corrective Action Fund Administration; and Part 125 Administrative Review.

(iii) Provisions not incorporated by reference. The following specifically identified sections and rules applicable to the New Mexico underground storage tank program that are broader in scope than the Federal program, are not part of the approved program, and are not incorporated by reference herein for enforcement purposes. :

(A) New Mexico Statutes Annotated (NMSA) 1978 Annotated, Chapter 74, Environmental Improvement.

(1)

, as amended through May 16, 2018: Hazardous Waste Act, section 74-4-4.4

Underground Storage Tanks

;

Registration; Installer Certification; Fees [Insofar as it applies to individuals other than UST owners and operators.]

(B) State of New Mexico Environmental Improvement Board Underground Storage Tank Regulations.

(1) Part I: General Provisions.

§ 103 Applicability [Insofar as it does not exclude UST systems with de minimis concentrations of regulated substances; emergency spill or overflow containment UST systems expeditiously emptied after use; UST systems that are part of emergency generator systems at nuclear power generation facilities; airport hydrant fuel distribution systems; and UST systems with field-constructed tanks; and does not defer emergency power generator UST systems.]

(2) Part XIV: Certification of Tank Installers [Insofar as it applies to individuals other than UST owners and operators.]

§ 1400 Purpose

§ 1401 Legal Authority

§ 1402 Definitions

§ 1403 Applicability

§ 1404 General Requirements

§ 1405 Contractor Certification

§ 1406 Individual Certification

§ 1407 Experience Requirements

§ 1408 Written Examination

§ 1409 On-Site Examination

§ 1410 Approval of Comparable Certification Programs

§ 1411 Denial of Certificates

§ 1412 Renewal of Certificates

§ 1413 Installer Duties and Obligations

§ 1414 Division Approval of Training and Continuing Education

§ 1415 Complaints

§ 1416 Investigations, Enforcement, Penalties

§ 1417 Division Actions Against Certificates

and Groundwater Protection Act, section 74-6B-9 and 74-6B-10.

(B) New Mexico Administrative Code (NMAC) Title 20 Environmental Protection, Chapter 5 Petroleum Storage Tanks, as amended effective July 24, 2018: Part 102, section 202 New Storage Tank Systems; Part 103 Annual Fee; Part 105 Certification of Tank Installers and Junior Installers; Requirements for Testers, section 509 Experience Requirements; Part 106 New and Upgraded Underground Storage Tank Systems: Design, Construction, and Installation, section 20.5.106.614 Loading Racks; Part 115 Out-of-Service Storage Tank Systems and Closure, sections 1501.C(3), 1501.E, 1501.F(3), and 1501.G [for field-erected AST systems only]; Part 119 Corrective Action for Storage Action Tank Systems Containing Petroleum Products, sections 20.5.119.1900.G and 20.5.119.1900.H; Part 120 Corrective Action for UST Systems Containing Other Regulated Substances, sections 20.5.120.2000.G and 20.5.120.2000.H; and Part 122 Qualification of Persons Performing Corrective Action.

(2) Statement of legal authority.

(i) “Attorney

The Attorney General's Statement

for Final Approval”

, signed by the Special Assistant Attorney General of New Mexico

on

June 25, 1990,

though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. (ii) Letter from the Attorney General of New Mexico to EPA, June 25, 1990,

and revisions to that Statement dated October 5, 2018, though not incorporated by reference,

is

are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Procedures for Adequate Enforcement” “Adequate Enforcement of Compliance” submitted as part of the original application on September 25, 1989 and as part of the program revision application for approval on October 11, 2018, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(4) Program description. The program description and any other material submitted as part of the original application on September 25, 1990, 1989 and as part of the program revision application October 11, 2018, though not incorporated by reference, are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 6 and the New Mexico Environmental Improvement BoardEnvironment Department, signed by the EPA Regional Administrator on September 13, 1990, July 29, 2019 though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

[61 85 FR 121753184, JanAug. 1828, 19962020]