SENATE BILL 710
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO NEW MEXICO COMMUNITIES; ENACTING THE NEW MEXICO HEALTHY COMMUNITIES ACT; REQUIRING NOTICE AND COMMUNITY IMPACT REPORTS PRIOR TO CERTAIN ACTIONS BY CERTAIN REGULATORY AGENCIES; PROVIDING CRITERIA FOR MAKING CERTAIN DECISIONS BY CERTAIN REGULATORY AGENCIES; PROVIDING FOR CITIZEN ENFORCEMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "New Mexico Healthy Communities Act".
Section 2. FINDINGS AND PURPOSE.--
A. The legislature finds that:
(1) facilities that affect New Mexico communities' air, water and other resources and that are regulated by the energy, minerals and natural resources department, the department of environment or local governments pursuant to their zoning authority tend to be concentrated in communities that consist predominantly of members of certain ethnic, income-level and racial populations;
(2) members of communities in which the regulated facilities are located and concentrated, and communities that are affected significantly by the regulated facilities, do not have the means to prevent the disparate public health, environmental and cultural impacts of the regulated facilities in their communities; and
(3) decisions are made about whether to fund or grant permits for the regulated facilities by the energy, minerals and natural resources department, the department of environment or local governments pursuant to their zoning authority without sufficient consideration of the public health, environmental and cultural impacts of the regulated facilities on ethnic, income-level and racial populations in the communities that are or will be affected significantly by the regulated facilities.
B. The purposes of the New Mexico Healthy Communities Act are to:
(1) require that the energy, minerals and natural resources department, the department of environment and local governments, when using their zoning authority, consider the impacts of their decisions on communities affected by those decisions;
(2) prevent decisions of the energy, minerals and natural resources department and the department of environment and zoning decisions of local governments from having disproportionate public health, environmental and cultural impacts on members of ethnic, income-level and racial populations;
(3) prevent the concentration in communities of regulated facilities that impact the public health, environment and culture of residents of those communities;
(4) provide for enhanced public participation in the decision-making processes of the energy, minerals and natural resources department, the department of environment and local government zoning authorities that affect the public health, environment and culture of communities; and
(5) provide affected individuals and communities with a means to address decisions of the energy, minerals and natural resources department and the department of environment and zoning decisions of local governments that violate the terms of the New Mexico Healthy Communities Act.
Section 3. DEFINITIONS.--As used in the New Mexico Healthy Communities Act:
A. "affected community" means an area of human habitation that:
(1) is contiguous to an existing or proposed regulated facility; or
(2) will or may be affected significantly by an existing or proposed regulated facility;
B. "chief administrative officer" means the secretary of energy, minerals and natural resources, the secretary of environment or the chief administrative officer of the municipal or county zoning authority;
C. "decision concerning a regulated facility" means a determination by a permitting agency related to an existing or proposed regulated facility to:
(1) certify compliance with any applicable state or United States statute or rule;
(2) issue, renew, amend or deny any permit;
(3) issue, renew or amend any permit with terms or conditions;
(4) issue, renew, amend or deny any variance or waiver;
(5) issue, renew or amend any variance or waiver with terms or conditions; or
(6) provide funding for the facility;
D. "impact" means a present or future significant effect on the public health, environment or culture of residents of an affected community;
E. "permitting agency" means the energy, minerals and natural resources department, the department of environment or any bureau, department, division, subdivision, other entity or any employee or agent of any of those departments. "Permitting agency" also includes any municipality or county, or an agency, employee, agent or elected official of any municipality or county, when exercising zoning authority;
F. "proceeding" means any administrative or other process that could result in a decision concerning a regulated facility; and
G. "regulated facility" means an entity or operation, whether privately or publicly owned and operated, that:
(1) may be constructed or operated only pursuant to a decision concerning a regulated facility by a permitting agency;
(2) is governed by a permit or other authorization issued by a permitting agency; or
(3) is or will be funded in whole or in part by funds dispensed, generated or provided by or through a permitting agency.
Section 4. PUBLIC NOTICE REQUIREMENTS.--If the chief administrative officer determines that a decision concerning a regulated facility may have an impact on an affected community, the permitting agency shall cause notice of the proceeding to be given to residents of each affected community. The notice shall be given at the time that the application or other request for the decision is filed, and shall be given in at least the following manner:
A. actual written notice of the application and the proceeding shall be given to the owners of record of properties that are adjacent to the property on which the regulated facility is or is proposed to be located;
B. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be published in a newspaper of general circulation in each affected community;
C. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be posted in a conspicuous place on the property of the regulated facility and in one or more conspicuous places in the community;
D. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be sent by first class mail to all persons who have requested notice of applications, hearings, opportunities for hearings or other proceedings concerning the facility or type of facility that is the subject of the application, hearing, opportunity for hearing or other proceeding;
E. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be provided as early as possible on the web site of the permitting agency to whom the application is directed;
F. the written and published notice provided for in Subsections A through E of this section shall also be provided to residents of each affected community in at least one other medium, including radio, television or a newsletter distributed within the community, in a manner designed to reach the maximum number of members of each community;
G. the written and published notice provided for in Subsections A through E of this section shall:
(1) be in English and any other written language most appropriate to the affected communities;
(2) include a description of the existing or proposed regulated facility, and of the application or other request for the decision; and
(3) include a statement indicating whether a public hearing will be held or the procedure that should be followed to request a public hearing; and
H. the notice to be published shall also be published in a place in the newspaper calculated to give members of the public the most effective notice.
Section 5. COMMUNITY IMPACT REPORT REQUIRED.--Prior to any decision concerning a regulated facility for which notice is given pursuant to Section 4 of the New Mexico Healthy Communities Act, the permitting agency shall cause a community impact report to be prepared. To the maximum extent possible, the community impact report shall be written in plain language that can be understood by the residents of an affected community. The community impact report also shall be published both in English and in any other written language most appropriate to each affected community in which the regulated facility is or is proposed to be located. At a minimum, the community impact report shall include the following:
A. the demographic makeup of each affected community, including the most recent United States census data showing the ethnic, income-level and racial populations in that community;
B. the present and future impacts that the existing or proposed regulated facility will or may have on the public health, environment or culture of each affected community;
C. the other known existing and proposed facilities that have or will have an impact on the public health, environment or culture of each affected community; and
D. any other known environmental factors that have or will have an impact on the public health, environment or culture of each affected community.
Section 6. PROHIBITED ACTS.--A permitting agency shall not make any decision concerning a regulated facility if that decision would:
A. result in a disproportionate public health, environmental or cultural impact or risk being imposed on the members of any ethnic, income-level or racial population of an affected community; or
B. result in a concentration of regulated facilities in an affected community.
Section 7. CITIZEN ENFORCEMENT.--
A. A person having an interest that is or may be adversely affected by a violation of the New Mexico Healthy Communities Act or a rule, order or permit issued pursuant to that act may commence a civil action on the person's own behalf against any permitting agency to compel compliance with that act.
B. No action shall be commenced pursuant to this section prior to sixty days after the plaintiff has given written notice to the permitting agency alleged to have violated the New Mexico Healthy Communities Act and to the attorney general; provided, however, that when the violation complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action pursuant to this section may be brought immediately after notification to the proper parties.
C. Suits brought pursuant to this section against permitting agencies or officials of New Mexico state government shall be brought in the district court for Santa Fe county. Suits brought pursuant to this section against agencies or officials of municipalities or counties shall be brought in the district court for any county that includes, in whole or in part, an affected community.
D. The court, in issuing a final order in an action brought pursuant to this section, may award costs of litigation, including attorney and expert witness fees, to a party whenever the court determines that such an award is appropriate.
E. The action and remedies provided for in this section are cumulative and in addition to any other remedies available.
Section 8. OTHER REGULATORY REQUIREMENTS.--The provisions of the New Mexico Healthy Communities Act are in addition to all other regulatory requirements for locating and operating a regulated facility. Compliance with other regulatory requirements shall not be deemed to be compliance with any provisions of the New Mexico Healthy Communities Act, and compliance with the New Mexico Healthy Communities Act shall not be deemed to be compliance with any regulatory requirement otherwise provided by law.
Section 9. CONTRARY DECISIONS VOID.--Any decision concerning a regulated facility that is made after July 1, 2005 and any permit, variance or other authorization resulting from the decision are void if the decision is not made in substantial compliance with the provisions of the New Mexico Healthy Communities Act.
Section 10. RULES.--A permitting agency shall promulgate such rules as are necessary to ensure compliance with the provisions of the New Mexico Healthy Communities Act.
Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.
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