46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO THE ENVIRONMENT; AMENDING THE SOLID WASTE ACT TO PROVIDE FOR OPTIONAL RATHER THAN MANDATORY PUBLIC HEARINGS.

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

Section 1. Section 74-9-23 NMSA 1978 (being Laws 1990, Chapter 99, Section 23) is amended to read:

"74-9-23. SOLID WASTE FACILITY PERMIT--WHEN APPLICATION DEEMED COMPLETE--NOTICE OF HEARING.--

A. An application for a solid waste facility permit under the provisions of Section [20 of the Solid Waste Act] 74-9-20 NMSA 1978 shall be deemed complete when the director has received all information required under that section and Section [21 of the Solid Waste Act] 74-9-21 NMSA 1978. At any time during the application process that the director determines that additional information is required from an applicant or that information furnished is incomplete, [he] the director shall notify the applicant in writing within ten days of the date that determination is made.

B. After the director's determination that a permit application is complete, the director shall provide an opportunity to the public to comment on the permit application and to request a public hearing.

[B.] C. Within sixty days of the director's determination that a permit application is complete, the director shall determine if a public hearing should be held and, if so, set a date, time and location for a hearing on the application and give notice of the hearing date, time and location and a brief description of the application in the same manner as required in Section [22 of the Solid Waste Act] 74-9-22 NMSA 1978 and to any person who makes a written request to the director for notice regarding a specific application. Except as otherwise provided in this section, hearings shall be conducted in accordance with the provisions of Section [29 of the Solid Waste Act] 74-9-29 NMSA 1978."

Section 2. Section 74-9-24 NMSA 1978 (being Laws 1990, Chapter 99, Section 24, as amended) is amended to read:

"74-9-24. SOLID WASTE FACILITY PERMIT--ISSUANCE AND DENIAL--GROUNDS--NOTIFICATION OF DECISION--PERMIT RECORDING REQUIREMENT.--

A. The director, within one hundred eighty days after the application is deemed complete, [and after a public hearing] shall issue a permit, issue a permit with terms and conditions or deny a permit application. The director may deny a permit application on the basis of information in the application or evidence presented at [the] a hearing, or both, if he makes a finding that granting the permit would be contradictory to or in violation of the Solid Waste Act or any regulation adopted [under it] pursuant to the provisions of that act. [He] The director may also deny a permit application if the applicant fails to meet the financial responsibility requirements established by the board [under] pursuant to the provisions of Subsection A of Section 74-9-8 NMSA 1978 and Section 74-9-35 NMSA 1978.

B. The director may deny [any] a permit application or revoke a permit if [he] the director has reasonable cause to believe that any person required to be listed on the application pursuant to Section 74-9-20 NMSA 1978 has:

(1) knowingly misrepresented a material fact in application for a permit;

(2) refused to disclose or failed to disclose the information required [under] pursuant to the provisions of Section 74-9-21 NMSA 1978;

(3) been convicted of a felony or other crime involving moral turpitude within ten years immediately preceding the date of the submission of the permit application;

(4) been convicted of a felony, within ten years immediately preceding the date of the submission of the permit application, in any court for any crime defined by state or federal statutes as involving or being restraint of trade, price-fixing, bribery or fraud;

(5) exhibited a history of willful disregard for environmental laws of any state or the United States; or

(6) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.

[C. In making a finding under Subsection B of this section, the director may consider aggravating and mitigating factors presented by any party at the hearing.

D.] C. If an applicant whose permit is being considered for denial or revocation on any basis provided in this section has submitted an affirmative action plan that has been approved in writing by the director and plan approval includes a period of operation under a conditional permit or license that will allow the applicant a reasonable opportunity to affirmatively demonstrate its rehabilitation, the director may issue a conditional license for a reasonable period of time of operation. In approving an affirmative action plan intended to affirmatively demonstrate rehabilitation, the director may consider the following factors:

(1) implementation by the applicant of formal policies;

(2) training programs and management control to minimize and prevent the occurrence of future violations;

(3) installation by the applicant of internal environmental auditing programs;

(4) the discharge of individuals convicted of any crimes set forth in Subsection B of this section; and

(5) such other factors as the director may deem relevant.

[E.] D. [Within sixty days of the date of the closing of the hearing on a permit application] The director shall notify the applicant by certified mail of the issuance, denial or issuance with conditions of a permit and the reasons therefor. Any person who has made a written request to the director to be notified of the action taken on the application shall be given written notice of the director's action.

[F.] E. No permit for the operation of a solid waste facility shall be valid until the permit or a notice of the permit and a legal description of the property on which the facility is located are filed and recorded in the office of the county clerk in each county in which the facility is located.

[G.] F. Except as otherwise provided by law:

(1) each permit issued for a publicly owned and publicly operated new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit or for twenty years, whichever is less. Each permit issued for a publicly owned landfill, transfer station, recycling facility or composting facility that is privately operated pursuant to a contract of no more than four [years] years' duration entered into in accordance with the state or local procurement code shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit or for twenty years, whichever is less. Each time the contract is renewed, the director shall review the contract to determine whether the term of the permit shall be governed by this paragraph or Paragraph (2) of this [section] subsection. Each permit shall be reviewed by the department of environment at least once every ten years. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions;

(2) each permit issued for a privately owned new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect for ten years or for the active life of the facility, whichever is less. Each permit issued for a publicly owned landfill, transfer station, recycling facility or composting facility that is leased to a private person or that is operated by a private person pursuant to a contract of more than four [years] years' duration shall remain in effect for ten years or for the active life of the landfill or facility, whichever is less. Each permit shall be reviewed at least every five years by the department of environment. Interested parties may petition the department for review, in addition to the five-year review, provided that the director shall have discretion to determine whether there is good cause for such an additional review. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions; and

(3) the term of permits for facilities not specified by this subsection shall be governed by existing or amended regulations adopted by the board.

[H.] G. The director shall issue separate special waste permits for all solid waste facilities that transfer, process, transform, recycle or dispose of special waste pursuant to regulations adopted by the board."

Section 3. Section 74-9-28 NMSA 1978 (being Laws 1990, Chapter 99, Section 28) is amended to read:

"74-9-28. OPPORTUNITY FOR PRIOR HEARING [REQUIREMENT FOR ALL]--ADJUDICATORY ACTIONS.--

A. The division shall provide an opportunity to the public to comment on the permit application and to request a public hearing prior to taking any of the following adjudicatory actions [by the division are subject to prior hearing in accordance with the requirements of Section 29 of the Solid Waste Act, in addition to any specific hearing requirements and procedures under other provisions of that act]:

(1) issuance, refusal to issue or modify and revocation of permits for solid waste facilities;

[(2) administrative enforcement actions; and] or

[(3)] (2) actions on requests for variances and exemptions.

B. In any adjudicatory hearing, the director has and may delegate to the hearing officer the power to issue subpoenas for the attendance and testimony of witnesses and the production of relevant documentary evidence. The subpoenas may be enforced by action brought in the district court for the county in which the hearing is held."

Section 4. Section 74-9-29 NMSA 1978 (being Laws 1990, Chapter 99, Section 29) is amended to read:

"74-9-29. [HEARING] PROVISIONS FOR ADJUDICATORY

ACTIONS.--

A. The director shall adopt procedural regulations to govern the procedures to be followed in [hearings on] the adjudicatory actions of the director. No adjudicatory actions under the Solid Waste Act shall be taken until these regulations are adopted. As a minimum, the procedural regulations shall provide:

(1) for hearings to be public;

(2) requirements for prior notice of the variance or exemption request hearings and the methods for giving that notice, which shall be designed to inform interested and affected persons of the nature of the action to be considered and the date, time and place of the hearing;

(3) for maintenance of a list of persons that desire to have notice of variance [request hearings] requests and provisions for giving notice to those persons;

(4) a reasonable opportunity for all persons desiring to be heard on a variance or exemption request or a permit action to be heard without making the hearing process unreasonably lengthy or cumbersome or burdening the record with unnecessary repetition;

(5) procedures for discovery;

(6) assurance that procedural due process requirements are satisfied;

(7) for the director to designate a hearing officer to conduct a hearing and make a report and recommendation to the director;

(8) for the maintenance of a record of the hearing proceedings and assessment of the costs of any transcription of testimony that is required for judicial review purposes; and

(9) for the place of the hearing to be in Santa Fe, and at other places the board may prescribe, for hearings on actions of general statewide application, for hearings on actions of limited local application to be held at a place in the area affected and for enforcement actions to be heard in Santa Fe.

B. Adjudicatory actions taken by the director [following a hearing on adjudicatory actions] shall be:

(1) written and shall state the reasons for the action;

(2) made public when taken;

(3) communicated to all persons that have made a written request for notification of the action taken; and

(4) taken within not more than thirty days after the closing of the [hearing] record or the date of submission of a report by a hearing officer."

Section 5. Section 74-9-30 NMSA 1978 (being Laws 1990, Chapter 99, Section 30) is amended to read:

"74-9-30. JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS.--

A. Any person adversely affected by an administrative action taken by the board or the director may appeal the action to the court of appeals. The appeal shall be on the record [made at the hearing. To support his appeal, the appellant shall make arrangements with the division for a sufficient number of transcripts of the record of the hearing on which the appeal is based. The appellant shall pay for the preparation of the transcripts].

B. On appeal, the court of appeals shall set aside the administrative 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."