New Mexico Hazardous Waste Permit Process (18-NM-b)
“Hazardous waste” is defined by the NMHWA as any solid waste or combination of solid wastes that because of their quantity, concentration or physical, chemical or infectious characteristics may:
- Cause or significantly contribute to any increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
- Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed. NMSA 74-4-3(K).
Hazardous Waste Permit Process Process
18-NM-b.1 to 18-NM-b.2 – Provide Public Notice of Pre-Application Meeting
Before the developer submits a Hazardous Waste Permit Application they are required to conduct at least one meeting with the public to solicit questions from the community and to inform the community of proposed hazardous waste management activities. The developer must provide public notice at least 30 days prior to the pre-application meeting. The developer may be required to provide documentation of the notice. NMAC 188.8.131.521(C)(1) and 40 CFR 124.31.
18-NM-b.3 – Notification of Regulated Waste Activity (EPA Form 8700-12)
Pursuant to the Resource Conservation and Recovery Act (RCRA), 40 CFR Part 262 mandates that all persons who generate, transport, treat, store, or dispose of hazardous waste are required to notify the EPA of their activities by obtaining an EPA Identification Number (EPA IN). In order to obtain an EPA IN, developers must submit a Notification of Regulated Waste Activity, also known as EPA Form 8700-12, to the NMED. This notice form can also serve as a component of the subsequent Hazardous Waste Part A Permit Application, if a permit is required. The notice form must contain information identifying the:
- The proposed site;
- Legal owner of the site;
- Hazardous Waste Activities; and
- Description of the hazardous waste.
For more information, consult the NMED Hazardous Waste Bureau website.
18-NM-b.4 to 18-NM-b.5 – Does the NMED Issue an EPA Identification Number?
The NMED has authority from the EPA to issue (or deny) EPAINs. Without an EPAIN, the process ends.
18-NM-b.6 – Hazardous Waste Part A Permit Application (EPA Form 8700-23)
Developers with a valid EPAIN may submit a Hazardous Waste Part A Permit Application, also known as EPA Form 8700-23, to the NMED. The application must contain similar information to the notice form (above) and additional information such as:
- List of other environmental permits;
- Correct process codes;
- Correct process descriptions;
- Topographical map;
- Scale drawing of the facility; and
18-NM-b.7 to 18-NM-b.8 – Review Application Materials for Completeness
The NMED will review the application materials for completeness. If the application is complete, then the NMED will issue a Notice of Intent to Deny or a Draft Permit.
18-NM-b.9 – Does the NMED Approve the Application?
The NMED reviews complete applications and determines whether to issue a Draft Permit or Notice of Intent to Deny based on adherence to the provisions of the NMHWA and RCRA.
18-NM-b.10 – Notice of Intent to Deny and Fact Sheet
Once the NMED determines that an application is complete, they must either prepare a Draft Permit or a Notice of Intent to Deny. A Notice of Intent to Deny must state the NMED’s reasons for the intended denial. NMAC 184.108.40.2061(A)(1)(b). The Notice of Intent to Deny must be accompanied by a Fact Sheet based on the full administrative file. NMAC 220.127.116.111(A)(2).
The notice of intent to deny must be given by publication in a newspaper of general circulation in the area affected, broadcasts over local radio stations, and by mailing a copy of the notice to the developer and any applicable unit of local, state or federal government. NMAC 18.104.22.1681(C)(3). The public notice must contain the following information at a minimum:
- The subject, the time and place of any scheduled hearing and the manner in which interested persons may present their views;
- A brief description of the procedures by which requests for hearings may be made, unless already scheduled;
- The name and address of the office processing the permit action for which notice is being given;
- The name and address of the developer, and, if different, of the facility or activity regulated by the permit;
- A brief description of the business conducted at the facility or activity described in the permit application or draft permit;
- The name, address and telephone number of a person from whom interested persons may obtain further information; and
- The location where interested persons may secure copies of the notice of intent to deny. NMAC 22.214.171.124(C)(4).
18-NM-b.11 – Draft Permit and Fact Sheet
Once the NMED determines that an application is complete, they must either prepare a Draft Permit or a Notice of Intent to Deny. A Draft Permit must contain all conditions, compliance schedules, monitoring requirements and technical standards of treatment, storage, and/or disposal provided for in 40 CFR 270. NMAC 126.96.36.1991(A)(1)(b). In addition, a Draft Permit must contain a Fact Sheet. NMAC 188.8.131.520(D)(1).
18-NM-b.12 – Provide Public Notice of Draft Permit or Intent to Deny
The NMED must provide notice to the public of the issuance of a Draft Permit. The notice requirements are identical to the requirements described above in 18-NM-b.10.
18-NM-b.13 – Comment on Draft Permit or Intent to Deny
The NMED must allow public comment on the Draft Permit or Notice of Intent to Deny for at least 45 days. NMAC 184.108.40.2061(A)(3). The NMED will conduct a public hearing if there is a timely request. If the NMED determines that a public hearing is necessary, then the comment period will automatically be extended to after the public hearing. NMAC 220.127.116.111(A)(6).
18-NM-b.14 to 18-NM-b.17 – Is a Public Hearing Requested or Otherwise Necessary?
During the public comment period, any interested person may request a public hearing. Where the NMED does not receive any such requests, the NMED will issue a Hazardous Waste Permit that mirrors the Draft Permit. If there is a request for a public hearing in response to a Draft Permit, the NMED and the developer will first work to attempt to resolve the issues giving rise to the opposition. If the issue is not resolved, then a public hearing will be conducted. No ruling on permit issuance may be made without an opportunity for a public hearing at which all interested persons must be given a reasonable chance to submit significant data, views or arguments orally or in writing and to examine witnesses testifying at the public hearing. NMAC 18.104.22.168(A)(4).
The NMED must provide notice of any public hearing at least 30 days prior to the scheduled date of the hearing and must state the subject of such hearing. NMAC 22.214.171.124(F)(1).
18-NM-b.18 – Final Decision; Response to Comments
The final permit decision becomes effective 30 days after notice of the decision has been served to the developer. The NMED will issue a response, available to the public, to any comments that:
- Specifies which provisions, if any, of the draft permit were changed in the final permit decision, and the reasons for the change; and
- Briefly describes and responds to all comments on the draft permit or the permit application raised during the public comment period or hearing.
18-NM-b.19 – Appeal Final Decision to Court of Appeals (optional)
Any person who is or may be affected by any final administrative action of the NMED may appeal to the court of appeals for further relief within thirty days after the action. The court of appeals will only set aside an action if it is found to be:
- Arbitrary, capricious or an abuse of discretion;
- Not supported by substantial evidence in the record; or
- Otherwise not in accordance with law.
The filing of an appeal by any party does not act as a stay of any action required by the NMED’s final decision. 126.96.36.1991.H
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