SENATE BILL 21

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Peter Wirth and Kristina Ortez and Roberto "Bobby" J. Gonzales

 

 

 

 

 

AN ACT

RELATING TO THE ENVIRONMENT; ENACTING THE POLLUTANT DISCHARGE ELIMINATION SYSTEM ACT; REQUIRING PERMITS FOR DISCHARGES INTO WATERS OF THE UNITED STATES; REQUIRING THE WATER QUALITY CONTROL COMMISSION TO ADOPT RULES TO IMPLEMENT THE DISCHARGE PROGRAM; PROVIDING POWERS AND DUTIES OF THE DEPARTMENT OF ENVIRONMENT; PROVIDING FOR ENFORCEMENT OF THE PROGRAM; PROVIDING FOR APPEALS TO THE WATER QUALITY CONTROL COMMISSION AND THE COURT OF APPEALS; CREATING A PRIVATE RIGHT OF ACTION; PROVIDING FOR PUBLICLY ACCESSIBLE RECORDS.

 

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Pollutant Discharge Elimination System Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Pollutant Discharge Elimination System Act:

          A. "business information" means any information that pertains to the interests of a business, that was developed or acquired by that business and, except where the context otherwise requires, that is possessed by the commission or department in recorded form;

          B. "commission" means the water quality control commission;

          C. "department" means the department of environment;

          D. "discharge" means the addition of a pollutant or combination of pollutants to waters of the United States from a point source, including surface runoff collected or channeled by human effort, discharges through pipes, sewers or other conveyances owned by the state, a municipality or another person that do not lead to a treatment works and discharges through pipes, sewers or other conveyances leading into privately owned treatment works. "Discharge" does not include an addition of pollutants by an indirect discharger;

          E. "federal act" means the Federal Water Pollution Control Act and its subsequent amendments and successor provisions;

          F. "knowingly" means a person acted with awareness of the consequences of the person's actions, or that the person's conduct could constitute a certain act, without knowing the action was unlawful;

          G. "national pollutant discharge elimination system" means the program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits and imposing and enforcing pretreatment requirements pursuant to Sections 307, 318, 402 and 405 of the federal act;

          H. "negligently" means a person acted with disregard of the rights or safety of others;

          I. "permit" means an authorization issued by the department in accordance with program requirements and includes an individual or general permit;

          J. "person" means an individual, an association, a partnership, a corporation, a municipality, a state or federal agency or an agent or employee thereof;

          K. "point source" means a discernible, confined and discrete conveyance, including a pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system or vessel or other floating craft from which pollutants are or may be discharged, but does not include return flows from irrigated agriculture or agricultural storm water runoff;

          L. "pollutant" means:

                (1) dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the federal Atomic Energy Act of 1954, as amended), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water; and

                (2) drilling fluids, produced waters and other non-domestic wastes associated with the exploration, development or production, transportation, storage, treatment or refinement of crude oil, natural gas, carbon dioxide gas or geothermal energy discharged into water; but

                (3) "pollutant" does not include:

                     (a) sewage from vessels;

                     (b) water, gas or other material that is injected into a well to facilitate production of oil or gas; and

                     (c) water derived in association with oil or gas production and disposed of in a well, if the well is used either to facilitate production or for disposal purposes, and if such injection or disposal will not result in the degradation of ground or surface water resources;

          M. "program" means the program authorized by the Pollutant Discharge Elimination System Act and approved by the United States environmental protection agency;

          N. "regional administrator" means the regional administrator of region six of the United States environmental protection agency;

          O. "waters of the United States" means those waters regulated under the program and defined in federal regulations; and

          P. "willfully" means a person acted voluntarily, intentionally, deliberately or purposefully.

     SECTION 3. [NEW MATERIAL] PERMIT REQUIRED.--

          A. A person shall not discharge a pollutant from a point source to waters of the United States without a permit issued by the department pursuant to the Pollutant Discharge Elimination System Act.

          B. The issuance of a permit does not convey any property rights or exclusive privileges.

          C. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights or any infringement of any other laws, rules, regulations or ordinances.

     SECTION 4. [NEW MATERIAL] COMMISSION--DUTIES.--The commission shall:

          A. adopt, promulgate and publish rules to implement and administer the program, including the standards, requirements, exclusions, exemptions, variances and processes to issue, renew, modify, deny and terminate permits, including rules that are necessary and appropriate to obtain and sustain authorization from the regional administrator. In adopting the rules, the commission may incorporate by reference, including prospectively, those sections or parts of federal regulations that the commission deems necessary and appropriate;

          B. adopt a schedule of fees to pay the cost of implementing the program, including the preparation and adoption of rules, the review of applications, issuance and enforcement of permits and rules, compliance assistance, monitoring and inspection of facilities and discharges, data stewardship, records management, administrative and legal costs and other costs the commission deems appropriate. Fees collected pursuant to this section shall be deposited in the water quality management fund; and

          C. hear and decide petitions for review of department actions to require, issue, renew, modify, deny or terminate a permit or issue a compliance order.

     SECTION 5. [NEW MATERIAL] DEPARTMENT--DUTIES AND POWERS.--

          A. For the discharge of a pollutant to waters of the United States, notwithstanding the provisions of Section 70-2-12 NMSA 1978, the department shall administer and enforce rules adopted by the commission pursuant to the Pollutant Discharge Elimination System Act.

          B. The department may implement the program, including the authority to:

                (1) propose rules for adoption by the commission;

                (2) conduct investigations;

                (3) require monitoring, sampling and reporting;

                (4) require the keeping and production of records, documents and other information;

                (5) review applications;

                (6) require, issue, renew, modify, deny or terminate permits;

                (7) enter into or through any site or premises subject to rules adopted for the program or in which records relevant to program operation are kept or may be located, at a reasonable time and upon the presentation of proper credentials, in order to investigate whether a discharge may be present, inspect, monitor, copy records, sample, photograph, collect other information or otherwise investigate compliance with the program, including compliance with permit conditions and other program requirements. Entry into a private residence shall be allowed only by consent of the owner of the residence or order of the district court for the county in which venue is proper;

                (8) issue administrative compliance orders and file civil and criminal actions in the district court to enforce the Pollutant Discharge Elimination System Act, permits and rules, including pretreatment standards and local limits adopted by publicly owned treatment works;

                (9) enter into agreements with the regional administrator for the implementation of the program;

                (10) enter into agreements with other governmental entities; and

                (11) receive and expend funds appropriated, authorized, granted, donated or allocated to the department for purposes consistent with the Pollutant Discharge Elimination System Act.

     SECTION 6. [NEW MATERIAL] ADMINISTRATIVE AND CIVIL ENFORCEMENT.--

          A. Whenever the department determines that a person violated or is violating or that a violation may occur of any requirement of the Pollutant Discharge Elimination System Act, program, permit or rule, the department may:

                (1) issue a temporary order directing the person to cease and desist unauthorized activity that is endangering or causing damage to public health or the environment pending further action by the department;

                (2) issue an administrative compliance order requiring compliance, modification or termination of the permit and assess a civil penalty, including for administrative compliance costs; and

                (3) commence a civil action in district court for appropriate relief, including a temporary restraining order or injunctive relief for a threatened or continuing violation of a program requirement and a civil penalty.

          B. An administrative compliance order shall state with reasonable specificity the nature of the violation. Civil penalties shall be recoverable for the violation of a provision of the Pollutant Discharge Elimination System Act or the program; a program permit condition; a program filing requirement; a duty to allow or carry out inspection, entry or monitoring activities; or a rule or an order issued by the department. A civil penalty assessed shall not be less than five thousand dollars ($5,000) per day of noncompliance for each violation.

          C. In determining the amount of a civil penalty, the department or district court shall consider the seriousness of the violation or violations, as well as the economic benefit, if any, resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator and other matters as justice may require. For the purposes of this section, a single operational upset or event that leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

          D. An administrative compliance order issued pursuant to Paragraph (2) of Subsection A of this section shall become final unless, no later than thirty days after service, the person issued the compliance order submits a written request to the commission for a public hearing.

          E. The commission shall conduct a public hearing no later than ninety days after receipt of the written request for a public hearing.

          F. Following a public hearing, the commission shall issue a written decision that shall constitute the final action on the compliance order.

          G. If a person fails to comply with the final action on the compliance order, the department may file a civil action in the district court to require compliance, modify or terminate the permit, collect the assessed civil penalty and assess an additional civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of continued noncompliance with the compliance order.

          H. Civil penalties shall be deposited in the current school fund.

     SECTION 7. [NEW MATERIAL] CRIMINAL ENFORCEMENT.--

          A. A person shall not:

                (1) discharge a pollutant to waters of the United States without a permit for the discharge issued under the program;

                (2) violate an applicable standard, limitation, permit condition or other requirement of a permit issued pursuant to the Pollutant Discharge Elimination System Act or a rule adopted pursuant to that act;

                (3) make a false statement, a representation, a certification or an omission of material fact in an application, a record, a plan, a form, a notice or a report required by a permit or other document submitted or maintained under the Pollutant Discharge Elimination System Act or a rule or permit adopted or issued pursuant to that act;

                (4) falsify, tamper with or render inaccurate a monitoring device, method or record required to be maintained under the Pollutant Discharge Elimination System Act or a rule or permit adopted or issued pursuant to that act;

                (5) fail to monitor, sample or report as required by a permit issued pursuant to the Pollutant Discharge Elimination System Act or a rule or permit adopted or issued pursuant to that act; or

                (6) violate a filing requirement under the Pollutant Discharge Elimination System Act or a rule or permit adopted or issued pursuant to that act.

          B. A person who willfully or negligently either violates, causes or allows another person to violate Paragraph (1) of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced in accordance with the Criminal Sentencing Act.

          C. A person who is convicted of a second or subsequent violation of Paragraph (1) of Subsection A of this section or who knowingly or negligently either violates, causes or allows another person to violate Paragraph (1) of Subsection A of this section is guilty of a third degree felony and shall be sentenced in accordance with the Criminal Sentencing Act.

          D. A person who knowingly or negligently violates Paragraph (1) of Subsection A of this section and knows at the time of the violation that the action is creating a substantial danger of death or serious bodily injury to another person is guilty of a second degree felony and shall be sentenced in accordance with the Criminal Sentencing Act.

          E. In addition to the sentence specified in Section 31-18-15 NMSA 1978, a person guilty of a felony under this section may be assessed a penalty not less than ten thousand dollars ($10,000) per day for each violation of a requirement of the Pollutant Discharge Elimination System Act or a rule or permit adopted or issued pursuant to that act.

          F. A single operational upset or event that leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

     SECTION 8. [NEW MATERIAL] APPEALS TO THE COMMISSION.--

          A. An interested person who is affected by a permitting action or compliance order may file a petition for review before the commission. The petition shall:

                (1) be made in writing to the commission within thirty days from the date notice is given of the department'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 department.

          B. A person who files a timely petition for review may request a stay of the department's action, which the commission may grant in whole or in part after a hearing on the request and a showing of good cause.

          C. Unless a timely petition for review is made, the decision of the department shall be final and shall not be subject to judicial review or review by the commission.

          D. If a timely petition for review is made, the commission shall consider the petition within ninety days after receipt of the petition at a commission meeting open to the public. The commission shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and location of the public commission meeting at which the petition for review will be considered. 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.

          E. The commission shall review the record compiled before the department, including the transcript of any public hearing held on the permitting action or compliance order, and shall allow any party to submit arguments.

          F. The commission may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the commission.

          G. Based on the review of the evidence, the arguments of the parties, if any, and the recommendations of the hearing officer, if one is designated, the commission shall sustain, modify or reverse the action of the department. The commission shall enter ultimate findings of fact and conclusions of law and keep a record of the review.

          H. 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 department. Based on the additional evidence, the department 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.

          I. 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 9. [NEW MATERIAL] JUDICIAL REVIEW.--

          A. A person who is adversely affected by a rule adopted by the commission may appeal to the court of appeals for further relief no later than thirty days after the commission's final action. The date the rule is filed with state records pursuant to the State Rules Act shall be the date of the commission's final action.

          B. A person who participated in a permitting or compliance order review before the commission may appeal to the court of appeals for further relief no later than thirty days after the commission's final action.

          C. An appeal before the court of appeals shall be upon the record made before the commission.

          D. An application for a stay of the action being appealed may be filed with the commission no later than thirty days after the commission's final action. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted pending the outcome of the judicial review. If the commission denies the application, a stay of the action may be granted by the court of appeals within ninety days after the commission's denial.

          E. The court of appeals shall set aside the commission's final action only if the court finds that the action is:

                (1) arbitrary, capricious or an abuse of discretion;

                (2) not supported by substantial evidence in the record; or

                (3) otherwise not in accordance with law.

     SECTION 10. [NEW MATERIAL] PRIVATE RIGHT OF ACTION--CITIZEN SUITS--RIGHT TO INTERVENE.--

          A. Except as provided in Subsection C of this section, a person may commence a civil action in state district court on the person's own behalf:

                (1) against any other person that is regulated by the Pollutant Discharge Elimination System Act, or by a rule, permit or order adopted or issued pursuant to that act, for the alleged violation; or

                (2) against the department for the alleged failure to perform a nondiscretionary act or duty.

          B. State district courts shall have jurisdiction to enforce compliance with the Pollutant Discharge Elimination System Act or a rule, permit or order adopted or issued pursuant to that act, to issue a restraining order or injunction, to compel the department to perform the nondiscretionary act or duty and to assess an appropriate civil penalty in accordance with Section 74-6-7 NMSA 1978.

          C. No action may be commenced under this section:

                (1) until sixty days after the plaintiff has given written notice of the alleged violation to the department, the attorney general and the alleged violator;

                (2) if the department has issued and is processing an administrative notice of violation or a compliance order or has commenced and is prosecuting a civil or criminal action to require compliance with the act, rule, permit, order, standard or discharge limitation; or

                (3) if the attorney general has commenced and is prosecuting a civil or criminal action to require compliance with the act, rule, permit, order, standard or discharge limitation.

          D. A person who has standing pursuant to Subsection A of this section and who has provided notice pursuant to Subsection B of this section prior to the initiation of the civil or criminal action may intervene as a matter of right.

          E. Notwithstanding Subsection C of this section, alleged violations that constitute an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff may be brought immediately after the plaintiff gives written notice of the alleged violation to the department, the attorney general and the alleged violator.

          F. The action shall be brought in the judicial district in which the alleged violator is located. The department and any citizen having an interest that is or may be adversely affected, if not a party, have the right of intervention at any time in any proceeding brought under this section. The plaintiff shall serve a copy of the complaint on the attorney general and the department. A consent decree or stipulated judgment may not be entered in an action brought under this section unless or until:

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

                (2) the plaintiff has provided a complete and unredacted copy of the proposed consent decree, settlement agreement or stipulated judgment to the department and the attorney general by certified mail and the department and the attorney general have had at least forty-five days to submit comments on the proposed decree or judgment to the court for consideration prior to the entry of the decree or judgment.

          G. The court may award litigation costs, including reasonable attorney and expert witness fees, to:

                (1) a prevailing plaintiff;

                (2) a substantially prevailing plaintiff; or

                (3) a substantially prevailing defendant if the plaintiff's claim was frivolous, unreasonable or groundless.

          H. Costs collected by the department pursuant to this section shall be deposited in the state treasury to be credited to the water quality management fund. Penalties collected by the department pursuant to this section shall be deposited in the current school fund.

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

          J. Nothing in this section shall restrict a right that a person or class of persons may have pursuant to a statute or common law to seek enforcement of the Pollutant Discharge Elimination Act and rules, permits or orders adopted or issued pursuant to that act or to seek any other relief.

     SECTION 11. [NEW MATERIAL] LIMITATIONS.--The Pollutant Discharge Elimination System Act does not authorize the commission or department to require a permit that:

          A. takes away or modifies a property right in water, except that the discharge of a pollutant to waters of the United States without a permit shall not be a property right in water;

          B. affects the relation between employers and employees with respect to or arising out of a condition of water quality;

          C. supersedes or limits the applicability of a law relating to industrial health, safety or sanitation;

          D. applies to a discharge composed entirely of return flows from irrigated agriculture;

          E. applies to a discharge of storm water runoff from a mining operation or an oil and gas exploration, production, processing or treatment operation or transmission facility that is composed entirely of flows that are from conveyances or systems of conveyances, including pipes, conduits, ditches and channels, used for collecting and conveying precipitation runoff and that are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of the operation or facility. Oil and gas exploration, production, processing or treatment operations or transmission facilities include activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not the field activities or operations may be considered to be construction activities; or

          F. applies to a discharge of runoff resulting from the following silviculture activities conducted in accordance with standard industry practice: nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage or road construction and maintenance.

     SECTION 12. [NEW MATERIAL] AVAILABILITY OF RECORDS.--

          A. Records, including the names and addresses of permit applicants or permittees, applications, permits, inspections and effluent data, including data relating to discharges and ambient water quality, obtained by the commission or department pursuant to the Pollutant Discharge Elimination System Act shall be available to the public.

          B. Records obtained by the commission or department that are submitted in relation to applications shall include information required on application forms provided by the commission or department, information submitted on the forms themselves and any attachments used to supply information required by the forms. All such records shall be available to the public.

          C. Except as provided in Subsection D of this section, for other records, the commission or department shall not disclose the record if a person submitting the record asserts at the time of submission that the record or part of the record, if made public, would divulge confidential business information as defined in the Pollutant Discharge Elimination System Act or trade secrets as defined in the Uniform Trade Secrets Act.

          D. Subsection C of this section does not apply to a record if the record is disclosed:

                (1) to officers, employees or authorized representatives of the commission or department;

                (2) to officers, employees or authorized representatives of the United States; or

                (3) in a proceeding pursuant to the Pollutant Discharge Elimination System Act or the federal act.

          E. An officer, employee or authorized representative of the commission or department who willfully discloses information that the commission or department has determined is entitled to protection as confidential business information or a trade secret shall be fined not more than one thousand dollars ($1,000) or imprisoned for not more than one year, or both.

          F. In submitting records, a person providing the records shall:

                (1) designate the records the person believes are entitled to protection pursuant to this section by stamping the records as "confidential business information"; and

                (2) submit the designated records separately from other records submitted under the Pollutant Discharge Elimination System Act.

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