SB0228

SENATE BILL 228

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Michael Padilla and Mimi Stewart

AN ACT

RELATING TO THE DEPARTMENT OF ENVIRONMENT; AUTHORIZING THE DEPARTMENT TO USE THE MONEY FROM CERTAIN FEES TO PAY THE COST OF OTHER OPERATIONAL EXPENSES; CHANGING THE BASIS OF CERTAIN FEES FROM A DOLLAR AMOUNT TO REASONABLE COSTS; PROVIDING THAT MONEY IN CERTAIN FUNDS ADMINISTERED BY THE DEPARTMENT MAY BE USED FOR OTHER OPERATIONAL EXPENSES; REPEALING CONFLICTING LAWS; MAKING APPROPRIATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 61-14E-10 NMSA 1978 (being Laws 1983, Chapter 317, Section 10, as amended) is amended to read:

"61-14E-10. FUND ESTABLISHED--DISPOSITION--METHOD OF PAYMENT.--

A. There is created in the state treasury the "radiologic technology fund".

B. All fees received by the department pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act shall be deposited with the state treasurer. The state treasurer shall place the money to the credit of the radiologic technology fund.

C. Payments out of the radiologic technology fund shall be on vouchers issued and signed by the person designated by the department upon warrants drawn by the department of finance and administration and, except as provided in Subsection D of this section, shall be used by the department for the purpose of meeting necessary expenses incurred in the enforcement of the purposes of the Medical Imaging and Radiation Therapy Health and Safety Act, the duties imposed by that act and the promotion of education and standards for medical imaging technology and radiation therapy in this state. All money unexpended or unencumbered at the end of the fiscal year shall remain in the radiologic technology fund for use in accordance with the provisions of the Medical Imaging and Radiation Therapy Health and Safety Act, except as provided in Subsection D of this section.

D. In addition to how money in the fund may be expended pursuant to Subsection C of this section, money in the fund may be used for other operational expenses of the department."

SECTION 2. Section 61-33-5 NMSA 1978 (being Laws 1973, Chapter 394, Section 5, as amended) is amended to read:

"61-33-5. APPLICATION REQUIREMENTS--FEES--FUND CREATED--ENDORSEMENT.--

A. An applicant for certification as a certified operator shall:

(1) make application on forms furnished by the department;

(2) submit evidence satisfactory to the department that the applicant has reached the age of majority; and

(3) except as provided in Section 61-1-34 NMSA 1978, pay in advance to the department fees set by rule [not to exceed:

(a) for examination for certification in each classification $100;

(b) for renewal of a certificate after a period set by rule $40.00; and

to cover the reasonable costs of issuing the certificates and other operational expenses of the department.

B. Fees collected pursuant to Subsection A of this section shall be deposited with the state treasurer in the "public water supply system operator and public wastewater facility operator fund", hereby created. Except as provided in Subsection C of this section, the fund shall be used solely for the purpose of administering and enforcing the Utility Operators Certification Act. The fund shall be administered by the department. Money in the fund shall be retained by the department for use, subject to appropriation by the legislature. Balances in the fund at the end of any fiscal year shall not revert to the general fund, but shall accrue to the credit of the fund. Earnings on the fund shall be credited to the fund.

C. In addition to how money in the fund may be expended pursuant to Subsection B of this section, money in the fund may be used for other operational expenses of the department.

[C.] D. The department may, in its discretion, endorse for certification without examination an operator who submits evidence satisfactory to the department that the applicant has reached the age of majority and holds a valid license or certification in any state, territory or foreign jurisdiction having standards equal to or exceeding those of New Mexico.

[D.] E. Fees shall not be increased more than once per calendar year. [The first increase of the fees shall not result in any fee greater than thirty dollars ($30.00). Any subsequent increase of the fees shall not be more than five percent of the existing fee.]"

SECTION 3. Section 74-1-13 NMSA 1978 (being Laws 1993, Chapter 317, Section 2, as amended) is amended to read:

"74-1-13. WATER CONSERVATION FEE--IMPOSITION--DEFINITIONS.--

A. There is imposed on every person who operates a public water supply system a water conservation fee in an amount equal to three cents ($.03) per thousand gallons of water produced on which the fee imposed by this subsection has not been paid.

B. The "water conservation fund" is created in the state treasury and shall be administered by the department. The fund shall consist of water conservation fees collected pursuant to this section. Balances in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the credit of the fund. Earnings on the fund shall be credited to the fund.

C. Money in the water conservation fund is appropriated to the department for administration of a public water supply program [to]:

(1) to test public water supplies for the contaminants required to be tested pursuant to the provisions of the federal Safe Drinking Water Act, as amended, and collect chemical compliance samples as required by those provisions of the federal act;

(2) to perform vulnerability assessments that will be used to assess a public water supply's susceptibility to those contaminants; [and]

(3) to implement new requirements of the Utility Operators Certification Act and provide training for all public water supply operators; and

(4) for other operational expenses of the department.

D. The taxation and revenue department shall provide by [regulation] rule for the manner and form of collection of the water conservation fee. All water conservation fees collected by the taxation and revenue department, less the administrative fee withheld pursuant to Section 7-1-6.41 NMSA 1978, shall be deposited in the water conservation fund.

E. The fee imposed by this section shall be administered in accordance with the provisions of the Tax Administration Act and shall be paid to the taxation and revenue department by each person who operates a public water supply system in the manner required by the department on or before the twenty-fifth day of the month following the month in which the water is produced.

F. Each operator of a public water supply system shall register and comply with the provisions of Section 7-1-12 NMSA 1978 and furnish such information as may be required by the taxation and revenue department.

G. The department shall compile a list of the contaminants that require testing pursuant to Paragraph (1) of Subsection C of this section. The list shall be compiled no less than once every twelve months and include the contaminants that will be tested in the subsequent twelve months. The department shall establish by rule procedures to compile the list and to determine which contaminants that require testing will be tested in the subsequent twelve months. The determination of which contaminants will be tested shall include consideration of the availability of funds in the water conservation fund, the needs of the public water supplies being tested for additional contaminants and public health and safety.

H. As used in this section:

(1) "person" means any individual or legal entity and also means, to the extent permitted by law, any federal, state or other governmental unit or subdivision or an agency, department or instrumentality thereof; and

(2) "public water supply system" means a system that provides piped water to the public for human consumption and that has at least fifteen service connections or regularly services an average of at least twenty-five individuals at least sixty days per year."

SECTION 4. Section 74-1-15.2 NMSA 1978 (being Laws 2020, Chapter 32, Section 1) is amended to read:

"74-1-15.2. ENVIRONMENTAL HEALTH FUND--CREATED.--

A. The "environmental health fund" is created in the state treasury. The fund consists of fees collected from the [regulation] rule of on-site liquid waste systems and water recreation facilities pursuant to the Environmental Improvement Act, food establishments pursuant to the Food Service Sanitation Act and hemp pursuant to the Hemp Manufacturing Act. Except as provided in Subsection B of this section, money in the fund is subject to appropriation by the legislature to the department for the administration of [regulations] rules pertaining to liquid waste, water recreation facilities, food service sanitation and hemp. Disbursements from the fund shall be by warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment or the secretary of environment's designee. Any unexpended or unencumbered balance in the environmental health fund remaining at the end of any fiscal year shall not revert to the general fund.

B. In addition to how money in the environmental health fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department.

[B.] C. Up to two hundred thousand dollars ($200,000) from unexpended and unencumbered money in the environmental health fund may be transferred to the liquid waste disposal system assistance fund on an annual basis."

SECTION 5. Section 74-1-16 NMSA 1978 (being Laws 2003, Chapter 335, Section 1, as amended) is amended to read:

"74-1-16. WATER RECREATION FACILITIES--FEE IMPOSITION.--

A. The board may assess an annual fee [not to exceed one hundred fifty dollars ($150)] on the owner or operator of a public swimming pool, public spa or other public water recreation facility to defray the cost of administering and enforcing rules adopted in accordance with the Environmental Improvement Act pertaining to public water recreation facilities. The fee shall be based on the size of the public water recreation facility. Fees collected pursuant to this section shall be deposited in the environmental health fund.

B. In addition to how money in the environmental health fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department."

SECTION 6. Section 74-2-7 NMSA 1978 (being Laws 1972, Chapter 51, Section 4, as amended) is amended to read:

"74-2-7. PERMITS--PERMIT APPEALS TO THE ENVIRONMENTAL IMPROVEMENT BOARD OR THE LOCAL BOARD--PERMIT FEES.--

A. By [regulation] rule, the environmental improvement board or the local board shall require:

(1) a person intending to construct or modify any source, except as otherwise specifically provided by [regulation] rule, to obtain a construction permit from the department or the local agency prior to such construction or modification; and

(2) a person intending to operate any source for which an operating permit is required by the 1990 amendments to the federal act, except as otherwise specifically provided by rule or regulation, to obtain an operating permit from the department or the local agency.

B. [Regulations] Rules adopted by the environmental improvement board or the local board shall include at least the following provisions:

(1) requirements for the submission of relevant information, including information the department or the local agency deems necessary to determine that [regulations] rules and standards under the Air Quality Control Act or the federal act will not be violated;

(2) specification of the deadlines for processing permit applications; provided that the deadline for a final decision by the department or the local agency on a construction permit application may not exceed:

(a) ninety days after the application is determined to be administratively complete, if the application is not subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings; or

(b) one hundred eighty days after the application is determined to be administratively complete, if the application is subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings;

(3) that if the department or local agency fails to take final action on a construction permit application within the deadlines specified in Paragraph (2) of this subsection, the department or local agency shall notify the applicant in writing that an extension of time is required to process the application and specify in detail the grounds for the extension;

(4) a description of elements required before the department or local agency shall deem an application administratively complete;

(5) specification of the public notice, comment period and public hearing, if any, required prior to the issuance of a permit; provided that the permit [regulations] rules adopted:

(a) by the environmental improvement board shall include provisions governing notice to nearby states; and

(b) by any local board shall include provisions requiring that notice be given to the department of all permit applications by any source that emits, or has a potential emission rate of, one hundred tons per year or more of any regulated air contaminant, including any source of fugitive emissions of each regulated air contaminant, at least sixty days prior to the date on which construction or major modification is to commence;

(6) a schedule of construction permit fees sufficient to cover the reasonable costs of:

(a) reviewing and acting upon any application for such permit; [and]

(b) implementing and enforcing the terms and conditions of the permit, excluding any court costs or other costs associated with an enforcement action; and

(7) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act;

(8) a method for accelerated permit processing that may be requested at the sole discretion of the applicant at the time the applicant submits a construction permit application and that:

(a) allows the department or local agency to contract with qualified outside firms to assist the department or local agency in its accelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm that does not have a conflict of interest; and

(b) establishes a process for the department or local agency to account for the expenditure of the accelerated permit processing fees;

(9) allowance for additional permit application fees, sufficient to cover the reasonable costs of an accelerated permit application review process. Before the applicant is notified that the permit application has been determined to be complete, the department or local agency shall give the applicant a reasonable estimate of costs of an accelerated permit application review process;

(10) specification of the maximum length of time for which a permit shall be valid; provided that for an operating permit such period may not exceed five years; and

(11) for an operating permit only:

(a) provisions consistent with Sections 502(b) and 505(b) of the federal act providing: 1) notice to and review and comment by the United States environmental protection agency; and 2) that if the department or local agency receives notice of objection from the United States environmental protection agency before the operating permit is issued, the department or the local agency shall not issue the permit unless it is revised and issued under Section 505(c) of the federal act;

(b) provisions governing renewal of the operating permit; and

(c) specification of the conditions under which the operating permit may be terminated, modified or revoked and reissued prior to the expiration of the term of the operating permit.

C. Except as provided in Subsection O of this section, the department or the local agency may deny any application for:

(1) a construction permit if it appears that the construction or modification:

(a) will not meet applicable standards, rules or requirements of the Air Quality Control Act or the federal act;

(b) will cause or contribute to air contaminant levels in excess of a national or state standard or, within the boundaries of a local authority, applicable local ambient air quality standards; or

(2) an operating permit if the source will not meet the applicable standards, rules or requirements pursuant to the Air Quality Control Act or the federal act.

D. The department or the local agency may specify conditions to any permit granted under this section, including:

(1) for a construction permit:

(a) a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the standards, rules and requirements of the Air Quality Control Act and the federal act;

(b) individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the permit application, whichever is more stringent;

(d) reasonable restrictions and limitations not relating to emission limits or emission rates; or

(e) any combination of the conditions listed in this paragraph; and

(2) for an operating permit, terms and conditions sufficient to ensure compliance with the applicable standards, rules and requirements pursuant to the Air Quality Control Act and the federal act.

E. This section does not authorize the department or the local agency to require the use of machinery, devices or equipment from a particular manufacturer if the federal standards of performance, state [regulations] rules and permit conditions may be met by machinery, devices or equipment otherwise available.

F. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act and any applicable [regulations] rules of the environmental improvement board or the local board. Any conditions placed upon a permit by the department or the local agency shall be enforceable to the same extent as a [regulation] rule of its board.

G. A person who participated in a permitting action before the department or the local agency shall be notified by the department or the local agency of the action taken and the reasons for the action. Notification of the applicant shall be by certified mail.

H. A person who participated in a permitting action before the department or the local agency and who is adversely affected by such permitting action may file a petition for hearing before the environmental improvement board or the local board. The petition shall be made in writing to the environmental improvement board or the local board within thirty days from the date notice is given of the department's or the local agency's action. Unless a timely petition for hearing is made, the decision of the department or the local agency shall be final.

I. If a timely petition for hearing is made, the environmental improvement board or the local board shall hold a hearing within sixty days after receipt of the petition. The environmental improvement board or the local board shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the hearing. If the subject of the petition is a permitting action deemed by the environmental improvement board or the local board to substantially affect the public interest, the environmental improvement board or the local board shall ensure that the public receives notice of the date, time and place of the hearing. The public in such circumstances shall also be given a reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing.

J. The environmental improvement board or the local board may designate a hearing officer to take evidence in the hearing. All hearings shall be recorded.

K. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the environmental improvement board or the local board shall sustain, modify or reverse the action of the department or the local agency respectively.

L. Notwithstanding any other provision of law and subject to the provisions of Section 74-2-4 NMSA 1978, a final decision on a permit by the department, the environmental improvement board, the local agency, the local board or the court of appeals that a source will or will not meet applicable local, state and federal air pollution standards, rules and regulations shall be conclusive and is binding on every other state agency and as an issue before any other state agency shall be deemed resolved in accordance with that final decision.

M. Subject to the provisions of Section 74-2-4 NMSA 1978, if the local board has adopted a permit [regulation] rule pursuant to this section, persons constructing or modifying any source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department.

N. Fees collected pursuant to this section shall be deposited in:

(1) the state air quality permit fund created by Section 74-2-15 NMSA 1978 if collected by the department; or

(2) a fund created pursuant to Section 74-2-16 NMSA 1978 if collected by a local agency pursuant to a permit [regulation] rule adopted by the local board pursuant to this section.

O. The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by [regulation] rule of the environmental improvement board, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national ambient air quality standard. The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, "best system of emissions reduction" for cotton gins means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts.

P. The department or local agency may deny any permit application or revoke any permit issued pursuant to the Air Quality Control Act if, within ten years immediately preceding the date of submission of the permit application, the applicant or permittee has:

(1) knowingly misrepresented a material fact in an application for a permit;

(2) refused to disclose the information required by the provisions of the Air Quality Control Act;

(3) been convicted in any court of any state or the United States of:

(a) a felony related to environmental crime; or

(b) a crime defined by state or federal statute as involving or being in restraint of trade, price fixing, bribery or fraud;

(4) constructed or operated a facility for which a permit is sought without a permit required by the Air Quality Control Act, except when such an unpermitted facility is discovered after acquisition in the course of a timely environmental audit authorized by department or local board policy and except if:

(a) the operator of the facility using good engineering practices and established approved calculation methodologies estimated that the facility's emissions would not require a permit pursuant to the Air Quality Control Act; and

(b) upon discovery of the discrepancy between the calculated pre-construction maximum facility emissions and the calculated post-construction maximum facility emissions, the operator of the facility applies for the appropriate permit within thirty calendar days; or

(5) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.

Q. In making a finding under Subsection P of this section, the department or local agency may consider aggravating and mitigating factors.

R. If an applicant or permittee whose permit is being considered for denial or revocation on any basis provided by Subsection P of this section has submitted an action plan that has been approved in writing by the secretary or director, and plan approval includes a period of operation under a conditional permit that will allow the applicant or permittee a reasonable opportunity to demonstrate its rehabilitation, the secretary or director may issue a conditional permit for a reasonable period of time.

S. An applicant for a permit pursuant to the Air Quality Control Act shall file a disclosure statement with the department or local agency with the information listed in Subsection P of this section, and on a form developed by the department. An existing permit holder shall provide such disclosure upon request by the department or local agency."

SECTION 7. Section 74-2-15 NMSA 1978 (being Laws 1992, Chapter 20, Section 18) is amended to read:

"74-2-15. STATE AIR QUALITY PERMIT FUND.--

A. There is created in the state treasury the "state air quality permit fund" to be administered by the department. All fees collected by the department pursuant to Section 74-2-7 NMSA 1978 shall be deposited in the state air quality permit fund.

B. Money in the state air quality permit fund is appropriated to the department for the purpose of paying the reasonable costs of:

(1) reviewing and acting upon any application for a permit;

(2) if the owner or operator receives a permit, implementing and enforcing the terms and conditions of such permit, not including any court costs or other costs associated with any enforcement action;

(3) emissions and ambient monitoring;

(4) preparing generally applicable [regulations] rules or guidance;

(5) modeling, analysis and demonstrations; [and]

(6) preparing inventories and tracking emissions; and

(7) other operational expenses of the department."

SECTION 8. Section 74-3-5.1 NMSA 1978 (being Laws 2000, Chapter 86, Section 6) is amended to read:

"74-3-5.1. RADIATION PROTECTION FUND CREATED.--

A. The "radiation protection fund" is created in the state treasury. Radiation license, registration and other related fees shall be deposited in the fund. All earnings from investment of the fund shall be credited to the fund. Except as provided in Subsection B of this section, money in the fund is appropriated to the department of environment to carry out provisions of the Radiation Protection Act. Disbursements from the fund shall be by warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment or [his] the secretary of environment's designee. Any unexpended or unencumbered balance in the radiation protection fund at the end of any fiscal year shall not revert to the general fund.

B. In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department of environment."

SECTION 9. Section 74-4-4.5 NMSA 1978 (being Laws 1987, Chapter 179, Section 7, as amended) is amended to read:

"74-4-4.5. HAZARDOUS WASTE FUND CREATED--APPROPRIATION.--

A. There is created in the state treasury the "hazardous waste fund", which shall be administered by the department. All fees collected pursuant to Section 74-4-4.2 NMSA 1978 shall be transmitted to the state treasurer for credit to the fund. Except as provided in Subsection B of this section, all balances in the fund are appropriated to the department for the [sole] purpose of meeting necessary expenses in the administration and operation of the hazardous waste program.

B. [All fees collected pursuant to Section 74-4-4.2 NMSA 1978 shall be transmitted to the state treasurer for credit to the hazardous waste fund] In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for operational expenses of the department."

SECTION 10. Section 74-4-4.8 NMSA 1978 (being Laws 1993, Chapter 298, Section 2, as amended) is amended to read:

"74-4-4.8. STORAGE TANK FUND CREATED--APPROPRIATION.--

A. There is created in the state treasury the

"storage tank fund", which shall be administered by the department. All fees collected pursuant to Subsection D of Section 74-4-4.4 NMSA 1978 shall be transmitted to the state treasurer for credit to the storage tank fund. Except as provided in Subsection B of this section, all balances in the fund are appropriated to the department for the sole purpose of meeting necessary expenses in the administration and operation of the storage tank program.

B. [All fees collected pursuant to Subsection D of Section 74-4-4.4 NMSA 1978 shall be transmitted to the state treasurer for credit to the storage tank fund] In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department.

C. Balances remaining in the storage tank fund at the end of a fiscal year shall not revert to the general fund."

SECTION 11. Section 74-4-8 NMSA 1978 (being Laws 1977, Chapter 313, Section 8, as amended) is amended to read:

"74-4-8. EMERGENCY FUND.--

A. The "hazardous waste emergency fund" is created in the state treasury. [This] Except as provided in Subsection B of this section, money in the fund shall be used for cleanup of hazardous substance incidents, disposal of hazardous substances and necessary repairs to or replacement of state property and may be used for the state's share of any response action taken under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq. The administrative and technical expenses of maintaining an emergency response program within the [division] department shall be reimbursable on a quarterly basis from this fund. Any penalties collected by the [division] department shall be credited to this fund. Amounts in the fund shall be deposited with the state treasurer and then disbursed pursuant to vouchers signed by the [director] secretary or [his] the secretary's authorized representative upon warrants drawn by the secretary of finance and administration.

B. In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department."

SECTION 12. Section 74-4G-4 NMSA 1978 (being Laws 1997, Chapter 38, Section 4) is amended to read:

"74-4G-4. [REGULATIONS] RULES.--The department shall adopt and promulgate rules [and regulations] necessary to implement the provisions of the Voluntary Remediation Act. The rules [and regulations] shall provide for, among other things, the amount of the nonrefundable application fee and a schedule for the cost of the department's oversight of the voluntary remediation and other operational expenses of the department."

SECTION 13. Section 74-4G-5 NMSA 1978 (being Laws 1997, Chapter 38, Section 5) is amended to read:

"74-4G-5. APPLICATION AND FEE.--

A. To be eligible for a voluntary remediation agreement an applicant must:

(1) own the site;

(2) operate a facility located on the site;

(3) be a prospective owner of the site; or

(4) be a prospective operator of a facility at the site.

B. An applicant shall pay at the time of submitting the application a reasonable, nonrefundable application fee determined by the department in advance that will pay for the costs to the department of processing the application and for other operational costs of the department.

C. The participant shall pay all costs of the department's oversight of the voluntary remediation.

D. The department shall reject an application for a voluntary remediation agreement if the department determines:

(1) the contaminants at the site constitute, with reasonable evidence, an unreasonable threat to human health or the environment or Native American cultural or religious sites;

(2) an administrative state or federal or judicial state or federal enforcement action is pending that concerns remediation of contamination described in the application;

(3) a federal grant requires an enforcement action at the site;

(4) the application is incomplete or inaccurate and the alleged incompleteness or inaccuracy cannot be remedied by the applicant within thirty days;

(5) the site has a state or federal permit that addresses a contaminant described in the application or a permit is pending;

(6) an agreement between the department and the environmental protection agency precludes the site from being addressed under this statute; or

(7) the applicant has, within ten years immediately preceding the date of submission of the application:

(a) knowingly misrepresented a material fact in an application for a permit or plan submitted pursuant to state environmental laws;

(b) refused or failed to disclose any material information required under [this] the Voluntary Remediation Act;

(d) had an environmental permit revoked or permanently suspended for cause pursuant to provisions of any environmental laws of any state or of the United States.

E. The department shall determine, on a first-come, first-served basis and within a reasonable period defined by [regulation] rule, whether the applicant is eligible to participate in a voluntary remediation agreement pursuant to provisions of the Voluntary Remediation Act.

F. Before the department approves a proposed voluntary remediation agreement, the applicant must:

(1) make the proposed voluntary remediation agreement available for public inspection at a location in reasonable proximity to the site;

(2) notify the following and advise them of the proposed voluntary remediation agreement and the opportunity to submit comments to the department:

(a) any local, state, federal, tribal or pueblo governmental agency potentially affected by the proposed voluntary remediation agreement;

(b) those parties that have requested notification;

(d) the general public by publishing in a newspaper of general circulation in the community potentially affected by the voluntary remediation agreement; and

(3) submit to the department a copy of the public notice as well as an affidavit affirming that the applicant has complied with the provisions of this subsection.

G. The department shall:

(1) provide a comment period of at least thirty days following publication of the newspaper notice. During the comment period, interested persons may submit comments to the department concerning the proposed voluntary remediation agreement. The department shall consider public comments in deciding whether to enter into a voluntary remediation agreement;

(2) during the thirty day comment period, allow any interested person to request a public meeting. The request shall be in writing and shall set forth the reasons why the meeting should be held. A public meeting will be held if the secretary of environment determines that there is significant public interest; and

(3) provide for appropriate public participation in the voluntary remediation work plan, including a public meeting if the secretary of environment determines that there is significant public interest.

H. If an agreement is not reached between an applicant and the department on or before the thirtieth day after the department determines an applicant to be eligible pursuant to the provisions of this section, the applicant or the department may withdraw from the negotiations."

SECTION 14. Section 74-4G-11 NMSA 1978 (being Laws 1997, Chapter 38, Section 11) is amended to read:

"74-4G-11. VOLUNTARY REMEDIATION FUND.--

A. The "voluntary remediation fund" is created in the state treasury. The fund shall be administered by the department. All fees and oversight payments collected pursuant to the [regulations] rules adopted by the secretary of environment pursuant to the provisions of the Voluntary Remediation Act shall be deposited in the fund. Except as provided in Subsection B of this section, the money in the fund shall be appropriated by law to the department for the purpose of administering the Voluntary Remediation Act. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment.

B. In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department."

SECTION 15. Section 74-6-5 NMSA 1978 (being Laws 1973, Chapter 326, Section 4, as amended) is amended to read:

"74-6-5. PERMITS--CERTIFICATION--APPEALS TO COMMISSION.--

A. By [regulation] rule, the commission may require persons to obtain from a constituent agency designated by the commission a permit for the discharge of any water contaminant or for the disposal or reuse of septage or sludge.

B. The commission shall adopt [regulations] rules

establishing procedures for certifying federal water quality permits.

C. Prior to the issuance of a permit, the constituent agency may require the submission of plans, specifications and other relevant information that it deems necessary.

D. The commission shall by [regulation] rule set the dates upon which applications for permits shall be filed and designate the time periods within which the constituent agency shall, after the filing of an administratively complete application for a permit, either grant the permit, grant the permit subject to conditions or deny the permit. The constituent agency has the burden of showing that each condition is reasonable and necessary to ensure compliance with the Water Quality Act and applicable [regulations] rules, considering site-specific conditions. After [regulations] rules have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the [regulations] rules. Additional conditions on a final permit may be imposed if the applicant is provided with an opportunity to review and provide comments in writing on the draft permit conditions and to receive a written explanation of the reasons for the conditions from the constituent agency.

E. The constituent agency shall deny any application for a permit or deny the certification of a federal water quality permit if:

(1) the effluent would not meet applicable state or federal effluent rules and regulations, standards of performance or limitations;

(2) any provision of the Water Quality Act would be violated;

(3) the discharge would cause or contribute to water contaminant levels in excess of any state or federal standard. Determination of the discharge's effect on ground water shall be measured at any place of withdrawal of water for present or reasonably foreseeable future use. Determination of the discharge's effect on surface waters shall be measured at the point of discharge; or

(4) the applicant has, within the ten years immediately preceding the date of submission of the permit application:

(a) knowingly misrepresented a material fact in an application for a permit;

(b) refused or failed to disclose any information required under the Water Quality Act;

(d) been convicted of a felony in any court for any crime defined by state or federal law as being a restraint of trade, price-fixing, bribery or fraud;

(e) exhibited a history of willful disregard for environmental laws of any state or the United States; or

(f) had an environmental permit revoked or permanently suspended for cause under any environmental laws of any state or the United States.

F. The commission shall by [regulation] rule develop procedures that ensure that the public, affected governmental agencies and any other state whose water may be affected shall receive notice of each application for issuance, renewal or modification of a permit. Public notice shall include:

(1) for issuance or modification of a permit:

(a) notice by mail to adjacent and nearby landowners; local, state and federal governments; land grant organizations; ditch associations; and Indian nations, tribes or pueblos;

(b) posting at a place conspicuous to the public and near the discharge or proposed discharge site; and

(c) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge or proposed discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections; and

(2) for issuance of renewals of permits:

(a) notice by mail to the interested public, municipalities, counties, land grant organizations, ditch associations and Indian nations, tribes or pueblos; and

(b) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections.

G. No ruling shall be made on any application for a permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit evidence, data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The hearing shall be recorded. Any person submitting evidence, data, views or arguments shall be subject to examination at the hearing.

H. The commission may adopt [regulations] rules for the operation and maintenance of the permitted facility, including requirements, as may be necessary or desirable, that relate to continuity of operation, personnel training and financial responsibility, including financial responsibility for corrective action.

I. Permits shall be issued for fixed terms not to exceed five years, except that for new discharges, the term of the permit shall commence on the date the discharge begins, but in no event shall the term of the permit exceed seven years from the date the permit was issued.

J. By [regulation] rule, the commission may impose reasonable conditions upon permits requiring permittees to:

(1) install, use and maintain effluent monitoring devices;

(2) sample effluents and receiving waters for any known or suspected water contaminants in accordance with methods and at locations and intervals as may be prescribed by the commission;

(3) establish and maintain records of the nature and amounts of effluents and the performance of effluent control devices;

(4) provide any other information relating to the discharge or direct or indirect release of water contaminants; and

(5) notify a constituent agency of the introduction of new water contaminants from a new source and of a substantial change in volume or character of water contaminants being introduced from sources in existence at the time of the issuance of the permit.

K. The commission shall provide by [regulation] rule a schedule of fees for permits, not exceeding the estimated cost of investigation and issuance, modification and renewal of permits and of other operational expenses of the department of environment. Fees collected pursuant to this section shall be deposited in the water quality management fund.

L. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Water Quality Act, any applicable [regulations] rules or water quality standards of the commission or any applicable federal laws, regulations or standards.

M. A permit may be terminated or modified by the constituent agency that issued the permit prior to its date of expiration for any of the following causes:

(1) violation of any condition of the permit;

(2) obtaining the permit by misrepresentation or failure to disclose fully all relevant facts;

(3) violation of any provisions of the Water Quality Act or any applicable [regulations] rules, standard of performance or water quality standards;

(4) violation of any applicable state or federal effluent rules, regulations or limitations; or

(5) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.

N. If the constituent agency denies, terminates or modifies a permit or grants a permit subject to condition, the constituent agency shall notify the applicant or permittee by certified mail of the action taken and the reasons. Notice shall also be given by mail to persons who participated in the permitting action.

O. A person who participated in a permitting action before a constituent agency or a person affected by a certification of a federal permit and who is adversely affected by such permitting action or certification may file a petition for review before the commission. Unless a timely petition for review is made, the decision of the constituent agency shall be final and not subject to judicial review. The petition shall:

(1) be made in writing to the commission within thirty days from the date notice is given of the constituent agency's action;

(2) include a statement of the issues to be raised and the relief sought; and

(3) be provided to all other persons submitting evidence, data, views or arguments in the proceeding before the constituent agency.

P. If a timely petition for review is made, the commission shall consider the petition within ninety days after receipt of the petition. The commission shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the review. If the petitioner is not the applicant or permittee, the applicant or permittee shall be a party to the proceeding. The commission shall ensure that the public receives notice of the date, time and place of the review.

Q. The commission shall review the record compiled before the constituent agency, including the transcript of any public hearing held on the application or draft permit, and shall allow any party to submit arguments. The commission may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the commission. The commission shall consider and weigh only the evidence contained in the record before the constituent agency and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the constituent agency. Based on the review of the evidence, the arguments of the parties and recommendations of the hearing officer, the commission shall sustain, modify or reverse the action of the constituent agency. The commission shall enter ultimate findings of fact and conclusions of law and keep a record of the review.

R. Prior to the date set for review, if a party shows to the satisfaction of the commission that there was no reasonable opportunity to submit comment or evidence on an issue being challenged, the commission shall order that additional comment or evidence be taken by the constituent agency. Based on the additional evidence, the constituent agency may revise the decision and shall promptly file with the commission the additional evidence received and action taken. The commission shall consider the additional evidence within ninety days after receipt of the additional evidence and shall notify the petitioner and the applicant or permittee, if other than the petitioner, of the date, time and place of the review.

S. The commission shall notify the petitioner and all other participants in the review proceeding of the action

taken by the commission and the reasons for that action."

SECTION 16. Section 74-6-5.2 NMSA 1978 (being Laws 1993, Chapter 100, Section 4) is amended to read:

"74-6-5.2. WATER QUALITY MANAGEMENT FUND CREATED.--

A. There is created in the state treasury the "water quality management fund" to be administered by the department of environment. All fees collected pursuant to the [regulations] rules adopted by the commission under Subsection [H] K of Section 74-6-5 NMSA 1978 shall be deposited in the fund. Except as provided in Subsection B of this section, money in the fund is appropriated to the department of environment for the purpose of administering the [regulations] rules adopted by the commission pursuant to Section 74-6-5 NMSA 1978. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment.

B. In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department of environment."

SECTION 17. Section 74-9-8 NMSA 1978 (being Laws 1990, Chapter 99, Section 8, as amended by Laws 1991, Chapter 185, Section 2 and also by Laws 1991, Chapter 194, Section 3) is amended to read:

"74-9-8. BOARD ADOPTION OF INITIAL [REGULATIONS] RULES.--[No later than December 31, 1991] The board shall adopt [regulations] rules under the authority of this section to:

A. implement, administer and enforce a program for the cost-effective and environmentally safe siting, construction, operation, maintenance, closure and post-closure care of solid waste facilities, including financial responsibility requirements for solid waste facility owners and operators and also including requirements that assure that the relative interests of the applicant, other owners of property likely to be affected and the general public will be considered prior to the issuance of a permit for a solid waste facility;

B. define the solid wastes that are considered special wastes;

C. establish specific requirements for the detoxification and disposal of special wastes;

D. establish classifications of solid waste facilities and define what types of solid waste may be processed or disposed of in each classification;

E. establish performance standards for the construction and operation of solid waste facilities that will assure protection of ground water quality from degradation by contaminants from solid waste facilities consistent with the provisions of the Water Quality Act and the [regulations] rules and standards established under that act by the water quality control commission, provided such [regulations] rules shall not allow permitting of any active solid waste facility larger than five hundred acres;

F. establish performance standards for transformation facilities that will assure protection of the state's environment;

G. establish requirements and procedures for the granting or denial of an application to modify a solid waste facility permit under Section 74-9-25 NMSA 1978;

H. establish requirements and procedures for commercial haulers to minimize littering and otherwise prevent degradation of the environment;

I. establish an applicant fee schedule for processing permit applications that is based on costs of application review incurred by the division, [and also] costs incurred for investigations of applicants by state departments and agencies other than the division and for other operational expenses of the department of environment, which [regulation] rule shall provide for the reimbursement of these costs to the division or other department or agency from the fees charged [and shall also limit the fee to be not greater than ten thousand dollars ($10,000)];

J. establish requirements and procedures for a person to obtain a variance from the application of a substantive [regulation] rule to the person if the person files a written application for a variance with the director and demonstrates to the director's satisfaction that:

(1) application of the [regulation] rule would result in an arbitrary and unreasonable taking of the applicant's property or would impose an undue economic burden upon any lawful business, occupation or activity; and

(2) granting the variance will not result in any condition injurious to human health, safety or welfare or the environment;

K. assure that no variance will be granted under the provisions of Subsection J of this section until the director has considered the relative interests of the applicant, other owners of property likely to be affected and the general public and that any variance or renewal of a variance shall be granted for time periods and under conditions consistent with reasons for the [various] variance but within the following limitations:

(1) if the variance is granted on the grounds that there are no practicable means known or available for the adequate prevention of degradation of the environment or the risk to the public health, safety or welfare, it shall continue only until the necessary means for the prevention of the degradation or risk become known and available; or

(2) if the variance is granted on the grounds that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraph (1) of this subsection, it shall not be granted for more than one year;

L. establish a list of solid wastes that shall not be transferred, disposed of or transformed in a solid waste facility and prohibit the disposal or transformation of those solid wastes in solid waste facilities;

M. establish recordkeeping procedures for solid waste transfer, landfill disposal and transformation facilities that shall include requirements for recording the type, amount and origin of solid waste transferred, disposed of or transformed at the facility and that require operators of landfill disposal, solid waste transfer and transformation facilities within the state to:

(1) maintain records in a form required by the division and file them with the division indicating the type, amount, origin and location in a landfill disposal facility of solid waste accepted by the facility;

(2) maintain copies of the records required under Paragraph (1) of this subsection after closure in a manner and for the length of time prescribed by the division; and

(3) make all required records available for inspection by the division and the general public during normal business hours; and

N. require the division to establish a solid waste facility operator certification program."

SECTION 18. Section 74-13-8 NMSA 1978 (being Laws 2005, Chapter 171, Section 8) is amended to read:

"74-13-8. RULES--AUTHORITY AND CONTENT.--The board shall adopt rules to implement the provisions of the Recycling and Illegal Dumping Act. The rules shall be adopted pursuant to the provisions of the Environmental Improvement Act and shall include:

A. requirements and procedures for the issuance of permits and registrations to tire recycling facilities, civil engineering applications, scrap tire generators and scrap tire haulers;

B. standards and requirements for tire recycling and scrap tire storage and processing;

C. record-keeping requirements for tire recycling facilities, scrap tire haulers and scrap tire generators;

D. financial assurance criteria for tire recycling facilities;

E. fire rules for storage of scrap tires and tire-derived products that are consistent with the rules or recommendations adopted by the state fire marshal;

F. criteria and procedures for making disbursements pursuant to grant and loan programs authorized from the recycling and illegal dumping fund;

G. requirements and procedures for contracting with counties, municipalities, Indian nations, pueblos and tribes, land grant communities and cooperative associations for the abatement of illegal dumpsites and recycling;

H. requirements and procedures for a scrap tire manifest system; and

I. a fee schedule applicable to:

(1) scrap tire haulers and tire recycling facilities not exceeding the estimated cost of investigating and issuing permits and registrations and conducting regulatory oversight of permitted and registered activities; [and

J. a fee schedule applicable to] (2) scrap tire generators not exceeding the estimated cost of conducting regulatory oversight of scrap tire generators; and

(3) scrap tire haulers, tire recycling facilities and scrap tire generators for other operational expenses of the department."

SECTION 19. Section 74-13-19 NMSA 1978 (being Laws 2005, Chapter 171, Section 19) is amended to read:

"74-13-19. RECYCLING AND ILLEGAL DUMPING FUND CREATED.--

A. The "recycling and illegal dumping fund" is created in the state treasury. Fees and penalties collected pursuant to the Recycling and Illegal Dumping Act shall be deposited into the fund. Except as provided in Subsection B of this section, money in the fund is appropriated to the department for abatement of illegal dumpsites; for processing, transportation or recycling of all recyclable materials and scrap tires; for providing funds to public landfills in New Mexico to offset the cost of collecting or recycling of tires; and for carrying out the provisions of the Recycling and Illegal Dumping Act. Any unexpended or unencumbered balance or income earned from the money in the recycling and illegal dumping fund remaining at the end of a fiscal year shall not revert to the general fund. Disbursements from the fund shall be by warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment or the secretary's designee.

B. In addition to how money in the fund may be expended pursuant to Subsection A of this section, money in the fund may be used for other operational expenses of the department."

SECTION 20. Section 75-1-3 NMSA 1978 (being Laws 1973, Chapter 333, Section 3, as amended) is amended to read:

"75-1-3. RURAL INFRASTRUCTURE REVOLVING LOAN FUND CREATED--ADMINISTRATION--EMERGENCY FUND.--

A. A special fund is created to be known as the "rural infrastructure revolving loan fund". Money appropriated to the fund or to the department to carry out the provisions of the Rural Infrastructure Act may be used to make loans and grants to local authorities, individually or jointly, for water supply, wastewater or solid waste facilities. Appropriations made to the fund but not expended at the end of the fiscal year for which appropriated shall not revert to the general fund but shall accrue to the credit of the fund. Earnings on the balance in the fund shall be credited to the fund. In addition, when the proceeds from the issuance of severance tax bonds appropriated to the fund are deposited in the state treasury, interest earned on that money during the period from deposit in the state treasury until the actual transfer of the money to the fund shall be credited to the fund.

B. Ten percent of any appropriation to the fund or to the department to carry out the provisions of the Rural Infrastructure Act shall be set aside for emergency grants and loans pursuant to Section 75-1-5 NMSA 1978.

C. All water supply, wastewater and solid waste facilities shall be designed in compliance with the engineering requirements established by the secretary after consulting with and considering the recommendations of the professional engineering societies operating in New Mexico. The secretary shall also establish, by [regulation] rule, guidelines for the ranking of projects for top priority based on public health needs.

D. The department shall administer the fund and shall make grant and loan disbursements in accordance with the Rural Infrastructure Act. The secretary shall adopt [regulations] rules to govern the application procedure and requirements for disbursing grants and loans under the Rural Infrastructure Act, including requirements consistent with the purpose of the act for determining the eligibility and priority of local authorities for such grants and loans.

E. Receipts from the repayment of loans, including loans approved by the state board of finance pursuant to Section 75-1-5 NMSA 1978, shall be deposited in the fund by the department, including receipts from the repayment of loans made pursuant to appropriations to carry out the purposes of the Water Supply Construction Act made prior to the effective date of the Rural Infrastructure Act.

F. Money in the fund is appropriated to the department to carry out the provisions of the Rural Infrastructure Act. The department may allocate [up to two percent of the total balance in the fund] an amount necessary to pay for administrative expenses necessary to carry out the provisions of the Rural Infrastructure Act and for other operational expenses of the department. Money allocated for administrative expenses shall be placed in a separate administrative account in the fund to be used solely for administrative expenses, and the department shall at the beginning of the fiscal year determine the projected administrative costs for the year and deposit in the account the appropriate amount; provided that the amount to be deposited does not exceed two percent of the total balance in the fund. Money in the account shall remain in the account at the end of a fiscal year.

G. Loans and grants made pursuant to the provisions of the Rural Infrastructure Act shall not be used by the local authority on any project constructed in fulfillment or partial fulfillment of requirements made of a subdivider by the provisions of the Land Subdivision Act or the New Mexico Subdivision Act."

SECTION 21. REPEAL.--Laws 1991, Chapter 185, Section 2 is repealed.

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