HB0242

HOUSE BILL 242

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Matthew McQueen

AN ACT

RELATING TO THE ENVIRONMENT; PROVIDING FOR A PRIVATE RIGHT OF ACTION TO ENFORCE CERTAIN STATUTES; ENACTING NEW SECTIONS OF THE AIR QUALITY CONTROL ACT, THE HAZARDOUS WASTE ACT, THE WATER QUALITY ACT AND THE SOLID WASTE ACT.

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

SECTION 1. A new section of the Air Quality Control Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is regulated by the Air Quality Control Act, or by a rule, permit or order issued pursuant to that act, alleging a past or present violation of the Air Quality Control Act or of any rule, permit or order issued under that act.

B. No action may be brought under this section until sixty days after the plaintiff has given written notice of the alleged violation to the department, the attorney general and the alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or of the public or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the department, the attorney general and the alleged violator.

C. No action may be brought under this section if the department has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Air Quality Control Act or a rule, permit or order issued under that act. In an action commenced by the department, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the civil action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint on the department and the attorney general. The department and the attorney general may intervene as a matter of right. No consent decree or stipulated judgment shall be entered in an action brought under this section unless:

(1) the department is a party to the consent decree; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department, and the department has had at least forty-five days after receipt of the proposed consent decree or judgment but prior to entry of the decree or judgment to submit comments on the proposed decree or judgment to the court.

E. In any action brought under this section, the court has jurisdiction to assess a civil penalty in the amount set forth in Subsection A of Section 74-2-12.1 NMSA 1978 for each violation, issue a restraining order or a temporary or permanent injunction, or grant a combination of the foregoing relief, and the court may award reasonable costs of litigation, including expert costs and attorney fees.

F. Penalties collected under this section shall be deposited in:

(1) the municipal or county general fund if the source is subject to the jurisdiction of a local authority; or

(2) the state treasury general fund for all other sources.

G. In any action brought under this section, if jurisdiction to enforce the Air Quality Control Act has been assumed by a local authority and if the complaint arose within the jurisdiction of the local authority, notwithstanding the definitions in Section 74-2-2 NMSA 1978, the following definitions shall apply:

(1) "board" means the local board created by the local authority;

(2) "department" means the administrative agency established by the local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978; and

(3) "secretary" means the director or administrative head of the department.

H. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section.

I. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any standard or requirement of the Air Quality Control Act or to seek any other relief."

SECTION 2. A new section of the Hazardous Waste Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is regulated by the Hazardous Waste Act, or by a rule, permit or order issued pursuant to that act, alleging a past or present violation of the Hazardous Waste Act or of any rule, permit or order issued under that act.

B. No action may be brought under this section until sixty days after the plaintiff has given written notice of the alleged violation to the department, the attorney general and the alleged violator. However, when the alleged violation 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 under this section may be brought immediately after notice is given to the department, the attorney general and the alleged violator.

C. No action may be brought under this section if the department has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Hazardous Waste Act or a rule, permit or order issued under that act. In an action commenced by the department, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the civil action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint on

the department and the attorney general. The department and the attorney general may intervene as a matter of right. No consent decree or stipulated judgment may be entered in an action brought under this section unless:

(1) the department is a party to the consent decree; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department, and the department has had at least forty-five days after receipt but prior to entry of the decree or judgment to submit comments on the proposed decree or judgment to the court.

E. In any action brought under this section, the court has jurisdiction to assess a civil penalty in the amount set forth in Section 74-4-12 NMSA 1978 for each violation, issue a restraining order or a temporary or permanent injunction, or grant a combination of the foregoing relief, and the court may award reasonable costs of litigation, including expert costs and attorney fees.

F. Penalties collected under this section shall be deposited in the state treasury to be credited to the hazardous waste emergency fund.

G. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section.

H. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any standard or requirement of the Hazardous Waste Act or to seek any other relief."

SECTION 3. A new section of the Water Quality Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is regulated by the Water Quality Act, or by a rule, permit or order issued pursuant to that act, alleging a past or present violation of the Water Quality Act or of a rule, permit or order issued under that act.

B. No action may be brought under this section until sixty days after the plaintiff has given written notice of the alleged violation to the constituent agency, the attorney general and the alleged violator. However, when the alleged violation 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 under this section may be brought immediately after notice is given to the constituent agency, the attorney general and the alleged violator.

C. No action may be brought under this section if the constituent agency has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Water Quality Act or a rule, permit or order issued under that act. In an action commenced by a constituent agency, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the civil action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint on the appropriate constituent agency and the attorney general. The constituent agency and the attorney general may intervene as a matter of right. No consent decree or stipulated judgment may be entered in an action brought under this section unless:

(1) the appropriate constituent agency is a party to the consent decree; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the appropriate constituent agency, and the constituent agency has had at least forty-five days after receipt but prior to entry of the decree or judgment to submit comments on the proposed decree or judgment to the court.

E. In any action brought under this section, the court has jurisdiction to assess a civil penalty in the amounts set forth in Section 74-6-10.1 NMSA 1978, issue a restraining order or a temporary or permanent injunction, or grant a combination of the foregoing relief, and the court may award reasonable costs of litigation, including expert costs and attorney fees.

F. Penalties collected under this section shall be deposited in the state treasury to be credited to the water quality management fund.

G. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section.

SECTION 4. A new section of the Solid Waste Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is regulated by the Solid Waste Act, or by a rule, permit or order issued pursuant to that act, alleging a past or present violation of the Solid Waste Act or of any rule, permit or order issued under that act.

B. No action may be brought under this section until sixty days after the plaintiff has given written notice of the alleged violation to the department of environment, the attorney general and the alleged violator. However, when the alleged violation 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 under this section may be brought immediately after notice is given to the department of environment, the attorney general and the alleged violator.

C. No action may be brought under this section if the department of environment has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Solid Waste Act or a rule, permit or order adopted under that act. In an action commenced by the department of environment, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the civil action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint on the department of environment and the attorney general. The department of environment and the attorney general may intervene as a matter of right. No consent decree or stipulated judgment may be entered in an action brought under this section unless:

(1) the department of environment is a party to the consent decree; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department of environment, and the department has had at least forty-five days after receipt but prior to entry of the decree or judgment to submit comments on the proposed decree or judgment to the court.

E. In any action brought under this section, the court has jurisdiction to assess a civil penalty in the amount set forth in Section 74-9-38 NMSA 1978 for each violation, issue a restraining order or a temporary or permanent injunction, or grant a combination of the foregoing relief, and the court may award reasonable costs of litigation, including expert costs and attorney fees.

F. Penalties collected under this section shall be deposited in the state treasury to be credited to the solid waste facility grant fund.

G. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section.

SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.

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