City Councilor Dan Lewis Introducing Legislation to Create New Air Quality Control Board

City Councilor Dan Lewis, District 5, is introducing two bills that address the Albuquerque-Bernalillo County Air Quality Control Board. The legislation proposes a limited moratorium on the current board’s rulemaking authority and proposes repealing and replacing the Air Quality Control Board ordinance.

“The current Joint Air Quality Control Board only represents a narrow set of interests and does not operate within the laws of the state of New Mexico,” said Councilor Lewis. “The proposed replacement ordinance establishes necessary safeguards to hold the board accountable and ensure the Board is comprised of diverse experts who can appropriately consider important matters relating to Air Quality in our community.”

The resolution, R-23-176, states the board must follow the Air Quality Control Act and cannot broadly consider other objections when creating regulations. The New Mexico Court of Appeals has said, “an administrative agency is not allowed to amend or enlarge its authority under the guise of making rules and regulations.”  Public Serv. Co. v. New Mexico Envtl. Imp. Bd.  It also said in Southwest Org. Project v. Albuquerque-Bernalillo Cnty. Air Quality Control Bd., “specific guidance [in the Air Quality Control Act] requiring consideration of quality of life impacts is conspicuously absent from its permitting provision.” Accordingly, the moratorium prevents the City from using any resources to facilitate any action by the current board to make, adopt, or amend any regulation or standard, which does purports to address quality of life impacts without scientific evidence in violation of existing law.

The ordinance, O-23-88, repeals the current ordinance and replaces it with a new one that establishes a more diverse board to include: a registered professional licensed engineer with experience in air pollution control, a physician licensed in New Mexico with experience in health effects of air contaminants, a person from a higher learning institution with experience training in air pollution evaluation and control, and a person from industry with training and experience in compliance or air pollution abatement.

The proposed Albuquerque-Bernalillo County Air Quality Control Board ordinance details the limits of the Board’s authority, requires the Board’s rules also be approved by the City Attorney, and allows the City Council to stay or disapprove a rule approved by the Board.

The proposed ordinance also requires: applicants to engage the community prior to proposing a rule; compliance by the Board with the Open Meetings Act, including only discussing matters on the published agendas; and prohibits the Board and its attorney from having ex-parte communications with applicants.

The bills will be formally introduced at the City Council Meeting on Monday, October 16, 2023.