New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD
Part 20 - FUGITIVE DUST CONTROL
Section 20.11.20.27 - ENFORCEMENT

A. All persons shall use control measures that are effective in maintaining compliance with 20.11.20 NMAC. Violation of a fugitive dust control permit or fugitive dust control plan approved by the department is a violation of 20.11.20 NMAC. If a violation occurs or is occurring, the department may issue a verbal warning, issue a written warning, initiate an administrative enforcement action and assess an administrative civil penalty, and take all other actions authorized by law and equity, including issuing a stop work order as authorized by 20.11.20.27 NMAC.

B. If the department determines a person has violated or is violating a requirement or prohibition of 20.11.20 NMAC, the department may initiate an administrative enforcement action and assess an administrative civil penalty for a past or current violation, or both, as authorized by 74-2-12.A.(1) NMSA. As also authorized by 74-2-12.A.(2) NMSA and 74-2-12.1 NMSA, the department may commence a civil action in New Mexico district court for appropriate relief, including a temporary or permanent injunction. In addition, as authorized by 74-2-14 NMSA, the department also may commence or cause a criminal action to be commenced.

C. As authorized by 74-2-12.H NMSA, in connection with an administrative enforcement action, the director may issue subpoenas for attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.

D. If a person (requestor) asks the department for an informal review meeting to consider the department's decision regarding an administrative compliance order in the manner provided by 20.11.20.27 NMAC, the process shall not extend the 30-day deadline for submitting a written request to the department director requesting a public hearing as provided by 74-2-12.C NMSA. If a person receives an administrative compliance order from the department, that person ("requestor") may request an informal review meeting to discuss the administrative compliance order. The request shall be in writing or on a form provided by the department. The requestor shall deliver the written request for an informal review meeting to the director and a division manager within five business days after the requestor has received the administrative compliance order. Within five business days of receiving the request, a division manager or designee shall hold an informal review meeting with the requestor and a division representative (e.g. division manager, compliance officer, or person issuing the order) in an attempt to resolve the administrative compliance order. Within two business days after the informal review meeting, a division representative shall mail, hand deliver or deliver by facsimile a statement to the requestor with the department's final decision regarding the administrative compliance order and the reasons for the decision. If the requestor is adversely affected by the final decision made by the department, the requestor may follow the procedures described in Subsection E of 20.11.20.27 NMAC.

E. A person who receives an administrative compliance order and chooses not to sign the compliance order or similar document as requested by the department, and comply with its terms, may request a hearing consistent with 74-2-12.C NMSA. The decision following the hearing may be appealed consistent with 74-2-9.A NMSA.

F. Payment of an administrative civil penalty shall not prevent the department from taking additional enforcement actions, if the violation is repeated or an additional violation occurs. Payment of an administrative civil penalty for a prior or additional violation shall not be a defense to a subsequent action taken by the department to resolve an additional violation. Actions by the department may include suspension or revocation of a permit, as provided by 74-2-12.B NMSA, and issuance of a stop work order.

G. The permittee or responsible person as identified in the permit shall take all actions required by the permit to prevent a violation of 20.11.20 NMAC, including stopping active operations, if necessary. If the permittee or responsible person as identified in the permit fails to take all required actions, the owner or operator, if different, shall take all actions required to prevent or satisfactorily resolve a violation of 20.11.20 NMAC, including stopping active operations, if necessary.

H. The department may issue a stop work order, which shall suspend all active operations except for the required application of reasonably available control measures. The department also may revoke a permit issued by the department if the permittee fails to implement the reasonably available control measures required by the fugitive dust control permit.

I. If a person fails to obtain a permit as required by 20.11.20 NMAC, the department may issue a stop work order which shall require all active operations at a site to stop except for application of reasonably available control measures.

J. The stop work order, which shall be effective 24 hours after the person, permittee, owner, operator, or responsible person named in a permit receives the stop work order, unless an earlier deadline for stopping work or other activities is imposed by the department for good reason. The stop work order shall remain in effect until the person, permittee, owner, operator, or responsible person named in the permit demonstrates to the satisfaction of the department that the activities of the person, permittee, owner, operator or responsible person named in the permit comply with the provisions of 20.11.20 NMAC.