46th legislature - STATE OF NEW MEXICO - first session, 2003
RELATING TO PUBLIC WATER SYSTEMS; AMENDING THE UTILITY OPERATORS CERTIFICATION ACT; TRANSFERRING DUTIES TO THE DEPARTMENT OF ENVIRONMENT FROM THE WATER QUALITY CONTROL COMMISSION; PROVIDING FOR ADMINISTRATION OF A FUND; RAISING FEES; PROVIDING FOR GENDER NEUTRALITY; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-33-2 NMSA 1978 (being Laws 1992, Chapter 44, Section 2, as amended) is amended to read:
"61-33-2. DEFINITIONS.--As used in the Utility Operators Certification Act:
A. "certified operator" means a person who is certified by the commission as being qualified to operate one of the classifications of water supply systems or wastewater facilities;
[B. "certified supervisor" means a person who is
certified as an operator by the commission as qualified to
operate one of the classifications of water supply systems or
wastewater facilities and who performs on-site coordinations,
direction and inspection of the operation of a public
wastewater facility or a public water supply facility;
C.] B. "commission" means
[(1)] the water quality control commission; [or
(2) the department, when used in connection
with any activity or function under the Utility Operators
Certification Act, the administration and enforcement of which
the commission has delegated to the department;
D.] C. "department" means the department of
environment;
[E.] D. "domestic liquid waste" means human excreta
and water-carried waste from typical residential plumbing
fixtures and activities, including waste from toilets, sinks,
bath fixtures, clothes or dishwashing machines and floor
drains;
[F.] E. "domestic liquid waste treatment unit"
means a watertight unit designed, constructed and installed to
stabilize only domestic liquid waste and to retain solids
contained in such domestic liquid waste, including aerobic
treatment units and septic tanks;
[G.] F. "person" means any agency, department or
instrumentality of the United States and any of their officers,
agents or employees, the state or any agency, institution or
political subdivision thereof, any public or private
corporation, individual, partnership, association or other
entity, and includes any officer or governing or managing body
of any political subdivision or public or private corporation;
[H.] G. "public wastewater facility" means a system
of structures, equipment and processes designed to collect and
treat domestic and industrial waste and dispose of the
effluent, but does not include:
(1) any domestic liquid waste treatment unit; or
(2) any industrial facility subject to an industrial pretreatment program regulated by the United States environmental protection agency under the requirements of the federal Clean Water Act of 1977; and
[I.] H. "public water supply system" means:
(1) a system for the provision through pipes or other constructed conveyances to the public of water for human consumption or domestic purposes if the system:
(a) has at least fifteen service connections; or
(b) regularly serves an average of at least twenty-five individuals at least sixty days of the year; and
(2) includes any water supply source and any treatment, storage and distribution facilities under control of the operator of the system."
Section 2. Section 61-33-3 NMSA 1978 (being Laws 1973, Chapter 394, Section 3, as amended) is amended to read:
"61-33-3. ADMINISTRATION--ENFORCEMENT.--
A. The administration and enforcement of the
Utility Operators Certification Act is vested in the
[commission.
B. The commission may further delegate to the
department the administration and enforcement of any portion of
the Utility Operators Certification Act except:
(1) the adoption of regulations; and
(2) the conducting of hearings on compliance
orders] department.
B. The department shall:
(1) approve and accredit schools and training programs designed to educate and qualify persons for certification in one of the classifications of public water supply system operator and public wastewater facility operator;
(2) prepare and administer written and practical examinations, based on nationally accepted standards, for certification of applicants as operators for one of the facility classifications established pursuant to Section 61-33-4 NMSA 1978;
(3) enter into agreements, contracts or cooperative arrangements with agencies of the federal, state or local governments or other organizations or individuals; and
(4) receive and accept financial and technical assistance from the federal government and other public or private agencies."
Section 3. Section 61-33-4 NMSA 1978 (being Laws 1973, Chapter 394, Section 4, as amended) is amended to read:
"61-33-4. POWERS AND DUTIES OF COMMISSION.--The commission shall:
A. adopt regulations that classify public water
supply systems and public wastewater facilities into
[categories] classifications for each type of utility based on:
(1) size and type of system or facility;
(2) capacity of the system or facility based on the size of the serviced area and the number and size of the users to be served;
(3) [the] type and character of the water or
wastewater to be treated; and
(4) [the] physical conditions affecting the
treatment plants, collection systems and distribution systems;
B. adopt regulations providing standards and
criteria for the certification of plant operators based on
their qualifications and their ability to [supervise or]
operate public water supply systems or public wastewater
facilities of the various classifications;
[C. approve and accredit schools and training
programs designed to educate and qualify persons for
certification in one of the classifications of public water
supply system operator and public wastewater facility operator;
D. prepare and administer written and practical
examinations, based on nationally accepted standards, for
certification of applicants as operators for one of the
facility classifications established under Subsection A of this
section;
E. enter into agreements, contracts or cooperative
arrangements with agencies of the federal, state or local
governments or other organizations or individuals under such
terms and conditions as the agency deems appropriate;
F. receive and accept financial and technical
assistance from the federal government and other public or
private agencies;
G.] C. appoint a seven-member board from the
certified public water supply system operators and public
wastewater facility operators to function with the commission
to [establish qualifications of operators, classify systems]
adopt regulations and advise the [administration of] department
on the Utility Operators Certification Act. Two board members
selected by the board shall sit as commission members on
matters to which that act is applicable; [and
H.] D. adopt and file under the State Rules Act
rules and regulations necessary to carry out the provisions of
the Utility Operators Certification Act; and
E. adopt regulations providing criteria for identifying the minimum number of certified operators needed to operate the various classifications of a public water supply system or a public wastewater facility."
Section 4. 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--ENDORSEMENT.--
A. Each applicant for certification as a public water supply system operator or public wastewater facility operator shall:
(1) make application on forms furnished by the
[commission] department;
(2) submit evidence satisfactory to the
[commission] department that the applicant has reached the age
of majority; and
(3) pay in advance to the [commission]
department fees set by regulation not to exceed:
(a) for examination for certification as
a public water supply system operator or a public wastewater
facility operator in each classification [$25.00] $200
(b) for issuance of a certificate
[10.00] 100
(c) for the annual renewal of a
certificate [10.00] 200
(d) for issuance of a certificate by
endorsement [25.00] 200.
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. This fund shall be
used solely for the purpose of [making necessary refunds. At
the end of each month, the fees remaining in the fund after
refunds shall be transferred to the state general fund by the
state treasurer] administration and enforcement of the Utility
Operators Certification Act. Funds deposited in the public
water supply system operator and public wastewater facility
operator fund are appropriated to the department and shall be
administered by the department. Balances in the fund at the
end of a 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. The [commission] department may, in its
discretion, endorse for certification without examination a
public water supply system operator or a public wastewater
facility operator who [meets the qualifications set forth in
Paragraph (2) of Subsection A of this section] 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."
Section 5. Section 61-33-6 NMSA 1978 (being Laws 1973, Chapter 394, Section 6, as amended) is amended to read:
"61-33-6. CERTIFICATION REQUIRED.--
A. It is unlawful to operate any public water
supply system or public wastewater facility unless the public
water supply system is operated by [or under the supervision
of] a certified public water supply system [supervisor or]
operator or the public wastewater facility is operated by [or
under the supervision of] a certified public wastewater
facility operator [or supervisor].
B. The owner of a public water supply system or public wastewater facility shall ensure that the operation is conducted in compliance with the provisions of this section.
C. As used in this section, "operate any public water supply system or public wastewater facility" means any activity or function conducted to ensure the proper functioning of the public water supply system or public wastewater facility, including monitoring systems, running tests, filing reports, maintaining logs and decision-making."
Section 6. Section 61-33-7 NMSA 1978 (being Laws 1973, Chapter 394, Section 7, as amended) is amended to read:
"61-33-7. SUSPENSION AND REVOCATION.--The [commission]
department shall, under the provisions of the Uniform Licensing
Act relating to notice and hearing, suspend or revoke any
certification upon the grounds that the certified operator:
A. [is guilty] committed an act of fraud or deceit
in procuring [his] a certification;
B. [is guilty] committed an act of gross
incompetence in the operation [or supervision of the class] of
a public water supply system or public wastewater facility
[that he is certified to supervise or operate];
C. was derelict in the performance of a duty as a
certified [public water supply system operator or public
wastewater facility] operator;
D. performed in the capacity of a higher
classification of certified [public water supply system
operator or public wastewater facility] operator [for a higher
classification] than that in which [he] the operator is
certified; or
E. is convicted of any violation of Section 61-33-8 NMSA 1978 or any state or federal water quality statutes."
Section 7. Section 61-33-8 NMSA 1978 (being Laws 1973, Chapter 394, Section 8, as amended) is amended to read:
"61-33-8. PROHIBITIONS--PENALTY.--
A. It is unlawful for any person not certified as a public water supply system operator or public wastewater facility operator to:
(1) use the title "certified operator" or
words of similar import in connection with [his] the
employment;
(2) [represent himself] act as a certified
public water supply system operator or a certified public
wastewater facility operator; or
(3) perform the duties of [a supervisor or] an
operator of a public water supply system or a public wastewater
facility.
B. It is unlawful for any person who operates a
public water supply system or public wastewater facility to
employ [a supervisor or] an operator of a public water supply
system or a public wastewater facility who is not certified by
the [commission] department.
C. Any violation of the provisions of this section is a misdemeanor."
Section 8. Section 61-33-9 NMSA 1978 (being Laws 1973, Chapter 394, Section 9, as amended) is amended to read:
"61-33-9. VARIANCE PROCEDURES.--
A. The [commission] department shall establish by
regulation a variance procedure for public water supply system
and public wastewater facility operating authorities.
B. Any variance procedure established by the
[commission] department shall not allow an operating authority
more than six months to obtain the service of a certified
operator, except the [commission] department may give a
variance not to exceed eighteen months if the operator in
charge is involved in a training course that will bring [his]
the operator's level of competency to the level required within
the eighteen-month period."
Section 9. Section 61-33-10 NMSA 1978 (being Laws 1992, Chapter 44, Section 10) is amended to read:
"61-33-10. ENFORCEMENT--COMPLIANCE ORDERS.--
A. Whenever, on the basis of any information, the
[commission] department determines that any person has
violated, is violating or threatens to violate any requirement
of the Utility Operators Certification Act, any regulation
adopted pursuant to that act or any condition of a
certification issued under that act, the [commission]
department may:
(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and either requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or
(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.
B. Any penalty assessed in the compliance order shall not exceed two thousand five hundred dollars ($2,500) per day for each violation of any provision of the Utility Operators Certification Act, any regulation adopted pursuant to the provisions of that act or any condition of a certification issued under that act.
C. In assessing any penalty authorized by this
section, the [commission] department shall take into account
the seriousness of the violation, any good faith efforts to
comply with the applicable requirements and other relevant
factors.
D. If a violator fails to take corrective actions
within the time specified in a compliance order, the
[commission] department may assess a civil penalty of not more
than five thousand dollars ($5,000) for each day of continued
noncompliance with the compliance order.
E. Any compliance order issued by the [commission]
department pursuant to this section shall become final unless,
no later than thirty days after the compliance order is served,
any person named in the compliance order submits a written
request to the [commission] department for a public hearing.
Upon receiving such a request, the [commission] department
shall promptly conduct a public hearing.
F. The [commission] department may appoint an
independent hearing officer to preside over any public hearing
held pursuant to this section. The hearing officer shall make
and preserve a complete record of the proceedings and forward
[his] the recommendation based upon the record to the
[commission] department, which shall make the final decision.
G. In connection with any proceeding [under]
pursuant to the provisions of this section, the [commission]
department may:
(1) adopt rules for discovery procedures; and
(2) issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents.
H. Penalties collected pursuant to a compliance order shall be deposited in the general fund."