AN ACT
RELATING TO RADIATION PROTECTION;
PROVIDING THE SECRETARY OF ENVIRONMENT WITH AUTHORITY TO ENFORCE ORDERS;
PROVIDING CIVIL AND CRIMINAL PENALTIES; AMENDING, REPEALING AND ENACTING
SECTIONS OF THE RADIATION PROTECTION ACT.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. Section 74-3-1 NMSA 1978 (being Laws 1971,
Chapter 284, Section 1, as amended) is amended to read:
"74-3-1. SHORT TITLE.--Chapter 74, Article 3 NMSA 1978
may be cited as the "Radiation Protection Act"."
Section 2. Section 74-3-4 NMSA 1978 (being Laws 1971,
Chapter 284, Section 4, as amended) is amended to read:
"74-3-4. DEFINITIONS.--As used in the Radiation
Protection Act:
A. "board" means the environmental
improvement board;
B. "agency" or "division"
means the environmental protection division of the department of environment;
C. "council" means the radiation
technical advisory council;
D. "radiation" includes particulate
and electromagnetic radiation and ultrasound, but does not include audible
sound;
E. "radioactive material" includes any
materials or sources, regardless of chemical or physical state, that emit
radiation;
F. "radiation equipment" means any
device that is capable of producing radiation;
G. "agreement state" means any state
with which the nuclear regulatory commission has entered into an agreement
under Section 274(b) of the federal Atomic Energy Act of 1954, as amended;
H. "person" means any individual,
partnership, firm, public or private corporation, association, trust, estate,
political subdivision or agency, or any other legal entity or its legal
representatives, agents or assigns;
I. "continued care fund" means the
radiation protection continued care fund;
J. "director" means the director of
the division;
K. "nuclear regulatory commission"
means the United States nuclear regulatory commission; and
L. "secretary" means the secretary of
environment."
Section 3. A new section of the Radiation Protection Act
is enacted to read:
"EMERGENCY POWERS OF THE
SECRETARY.--
A. Notwithstanding any other provision of the
Radiation Protection Act, if the secretary determines that a person is
violating a condition of a license or registration issued by the agency, or
administered by the agency pursuant to an agreement with the nuclear regulatory
commission, or any regulation promulgated pursuant to the Radiation Protection
Act, and determines that the violation may present an imminent and substantial
endangerment to human health or safety, the secretary may bring suit to
immediately restrain the person from the violation or take such other action as
may be necessary or both. The secretary may
also take other action, including issuing orders as may be necessary to protect
human health and safety. The order shall
be effective immediately; however, the person named in the order may request an
administrative hearing before the secretary within ten days after the order is
served. If a timely request for a
hearing is made, the secretary shall hold the hearing within thirty days. The secretary may commence an action in the
appropriate district court to enforce an order.
B. A person who willfully violates an order of
the secretary pursuant to Subsection A of this section may be fined not more
than fifteen thousand dollars ($15,000) per day for each violation of the
order."
Section 4. A new section of the Radiation Protection Act
is enacted to read:
"ENFORCEMENT--COMPLIANCE
ORDERS--CIVIL PENALTIES.--
A. When, on the basis of any information, the
secretary determines that a person has violated or is violating a requirement
or prohibition set forth in the Radiation Protection Act, a regulation
promulgated pursuant to that act or a condition of a license or registration
issued pursuant to that act, the secretary may:
(1) issue a compliance order stating with
reasonable specificity the nature of the violation and requiring compliance
immediately or within a specified time period, or assessing a civil penalty for
a past or current violation, or both.
The secretary may commence an action in the appropriate district court
to enforce an order; or
(2) commence a civil action in district court for
appropriate relief, including injunctive relief.
B. An order issued pursuant to Subsection A of
this section may include a suspension or revocation of a license or
registration, or portion thereof, issued by the secretary. A penalty assessed in the order shall not
exceed fifteen thousand dollars ($15,000) per day for each violation in the order. If a person named in an order fails to comply
with the order, the secretary may assess a civil penalty in an amount not to
exceed fifteen thousand dollars ($15,000) per day for each violation of the
order.
C. In determining the amount of a penalty to be
assessed pursuant to this section, the secretary shall take into account the
seriousness of the violation, any good-faith efforts to comply with the
applicable requirements and any other relevant factors.
D. An order issued pursuant to the provisions of
Subsection A of this section shall become final unless, no later than thirty
days after the order is served, the person named in the order submits a written
request to the secretary for a public hearing.
The secretary shall appoint an independent hearing officer to preside
over the public hearing. The hearing
officer shall make and preserve a complete record of the proceedings and
forward a recommendation based on the proceedings to the secretary. The secretary shall make a final decision.
E. In connection with any proceeding pursuant to
this section, the secretary may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books and
documents. The secretary may also adopt
rules for discovery procedures.
F. Penalties collected pursuant to an
administrative order issued pursuant to this section shall be deposited in the
state general fund."
Section 5. A new section of the Radiation Protection Act
is enacted to read:
"ADMINISTRATIVE
ACTIONS--APPEALS.--
A. A person who is adversely affected by a final
administrative action of the secretary may appeal to the court of appeals for
further relief within thirty days after the action. All appeals shall be on the administrative
record developed by the secretary.
B. Upon appeal, the court of appeals shall set
aside the action only if it is found to be:
(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.
C. A stay of enforcement of the action being
appealed may be granted after hearing and upon good cause shown:
(1) by the secretary; or
(2) by the court of appeals if the secretary
denies a stay or fails to act upon an application for a stay within sixty days
after receipt."
Section 6. A new section of the Radiation Protection Act
is enacted to read:
"CRIMINAL PENALTIES.--
A. A person who knowingly commits a violation of
the Radiation Protection Act or a regulation promulgated pursuant to that act
is guilty of a misdemeanor and upon conviction shall be sentenced to a term of
imprisonment not to exceed three hundred sixty-four days or the payment of a
fine not to exceed ten thousand dollars ($10,000), or both.
B. A person who knowingly makes a false
statement, representation or certification in an application, record, report,
plan or other document filed or required to be maintained pursuant to the
Radiation Protection Act or any regulation promulgated pursuant to that act is
guilty of a petty misdemeanor and upon conviction shall be sentenced to a term
of imprisonment not to exceed six months or the payment of a fine not to exceed
ten thousand dollars ($10,000), or both."
Section 7. REPEAL.--Sections 74-3-11 and 74-3-12 NMSA
1978 (being Laws 1971, Chapter 284, Section 9 and Laws 1977, Chapter 343,
Section 12, as amended) are repealed.
Section 8. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.
HB 849
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