New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 2 - AIR QUALITY (STATEWIDE)
Part 72 - CONSTRUCTION PERMITS
Section 20.2.72.221 - ACCELERATED REVIEW

Universal Citation: 20 NM Admin Code 20.2.72.221

Current through Register Vol. 35, No. 18, September 24, 2024

A. Qualified Outside Firms:

(1) The Department shall request proposals from persons interested in providing assistance as a qualified outside firm in the accelerated review of construction permit applications under this Part.

(2) The Department shall evaluate the proposal submitted by the person. To be eligible to contract with the Department as a qualified outside firm a person must:
(a) Be legally qualified to contract with the Department; and

(b) Be qualified to assist the Department in review of permit applications, as determined by the Department in the Department's sole discretion.

(3) Persons who are selected as qualified outside firms shall be under contract with the Department for accelerated review of construction permit applications under this section.

B. Requests for Accelerated Review:

(1) At the sole discretion of the applicant, a construction permit applicant under this Part may request accelerated permit review of the application by a qualified outside firm. Applications for accelerated review shall be preceded by a pre-application meeting between the applicant and the Department. Requests for accelerated review shall not be granted unless there is at least one qualified outside firm under contract with the Department pursuant to Paragraph 3 of Subsection A of 20.2.72.221 NMAC. If there are no firms under contract to provide accelerated review, the Department shall review the application in accordance with 20.2.72.207 NMAC.

(2) Such request for accelerated permit review shall be submitted with the construction permit application along with a corporate check or money order for the amount of the accelerated review filing fee as specified in 20.2.75 NMAC. The Department shall notify the applicant of the names and addresses of the qualified outside firms. The applicant shall deliver a copy of the application, by mail or hand delivery, to each qualified outside firm identified by the Department, unless the applicant is aware of a conflict of interest.

(3) Participation in the accelerated permit review process shall not relieve the applicant of any responsibilities specified in this chapter.

(4) Applicants who have opted for accelerated review under this section shall be subject to supplementary fees pursuant to 20.2.75 NMAC which shall be assessed in addition to all other applicable fees levied under 20.2.75 NMAC.

(5) Qualified outside firms under contract which are interested in performing the accelerated review on a specific application shall submit to the Department:
(a) A statement of interest;

(b) A statement of qualifications for that specific application;

(c) An estimate of the cost and schedule for the review; and

(d) A notarized affidavit attesting that no conflict of interest exists on the specific permit application.

(6) If no qualified outside firm submits the four items required by Paragraph 5 of Subsection B of 20.2.72.221 NMAC, the Department shall apply the accelerated review filing fee to the permit fee in accordance with 20.2.75 NMAC and review the application without the assistance of a qualified outside firm and in accordance with 20.2.72.207 NMAC.

(7) The Department shall review the submittals and determine, in the Department's sole discretion, which firms qualify for any specific application.

(8) Prior to determining any application administratively complete for which accelerated review has been requested as allowed under 20.2.72.203 NMAC, the Department shall provide the applicant a written summary of the qualified submittals showing the costs to the applicant of the accelerated review and the anticipated schedule for application review, permit development and permit issuance.

(9) Applicant's Responsibilities for Response to Submittal Summary:
(a) Within five (5) working days of receipt of the Department's bid summary the applicant shall either:
(i) submit to the Department a written recommendation to accept one of the accelerated review bids, or a prioritized list of more than one of the accelerated review bids, including a brief justification for the recommendation(s) along with a corporate check or money order payable to the Department for the amount of the accelerated review bid and a notarized affidavit attesting that no conflict of interest exists on the specific permit application; or

(ii) submit to the Department a written withdrawal of the request for accelerated review.

(b) The request for accelerated review is deemed withdrawn if the applicant fails to submit a written recommendation or withdrawal within five (5) working days of receipt of the Department's bid summary unless the Department has granted an extension.

(10) Department's Selection of Qualified Outside Firm
(a) If the request for accelerated review is withdrawn, the Department shall retain the accelerated review filing fee in accordance with 20.2.75 NMAC and shall review the application without the assistance of a qualified outside firm and in accordance with 20.2.72.207 NMAC.

(b) If the applicant recommends a qualified submittal, the Department shall determine whether to accept the recommended submittal. If the Department accepts the recommended submittal it shall instruct the qualified outside firm to begin review of the application. If the Department rejects the recommended submittal, it shall inform the applicant and allow the applicant to recommend an alternate submittal pursuant to Paragraph 9 of Subsection B of 20.2.72.221 NMAC or, if there are no other qualified submittals, the Department shall retain the accelerated review filing fee in accordance with 20.2.75 NMAC and review the application without the assistance of a qualified outside firm and in accordance with 20.2.72.207 NMAC.

C. Disclosure of Conflicts During Accelerated Review:

(1) The applicant and the qualified outside firm have a continuing obligation to investigate potential conflicts of interest and to immediately disclose, in writing, any conflict of interest to the Department. If a conflict of interest was not disclosed pursuant to Subparagraph d of Paragraph 5 of 20.2.72.221 NMAC or Subparagraph a of Paragraph 9 of Subsection B of 20.2.72.221 NMAC, and is later disclosed or discovered, the Department may:
(a) Deny the application pursuant to 20.2.72.208 NMAC;

(b) Terminate accelerated review and review the application pursuant to 20.2.72.207 NMAC; or

(c) Allow accelerated review to continue after elimination of the conflict.

(2) In choosing between these options the Department shall consider whether the conflict of interest was disclosed or discovered, the timing of the disclosure or discovery, diligence in investigating potential conflicts of interest, any indication of intentional or willful failure to disclose, significance of the conflict of interest, and ability to eliminate the conflict of interest in a timely manner.

D. Issuance of a Permit After Accelerated Review:

(1) Upon completion of the review, the qualified outside firm shall provide the Department with all documentation, including but not limited to all communications, notes, and drafts, pertaining to the permit application. At any time during the review, the qualified outside firm shall provide all documentation pertaining to a specific application to the Department upon request. Such documentation shall be subject to the Inspection of Public Records Act, Chapter 14, Article 2 NMSA 1978, and the Confidential Information Section of the Air Quality Control Act, Section 74-2-11 NMSA 1978.

(2) The Department shall review the analysis prepared by the qualified outside firm and shall issue a permit or deny the permit application in accordance with this Part. The qualified outside firm's analysis is not binding on the Department. The Department retains final authority to accept or reject the qualified outside firm's analysis regarding the permit application.

(3) The Department shall not issue the permit until both the accelerated review processing fee and any fees due pursuant to 20.2.75 NMAC have been paid.

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