SENATE BILL 131
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
H. Diane Snyder
FOR THE WATER AND NATURAL RESOURCES COMMITTEE
AN ACT
RELATING TO OCCUPATIONS; CHANGING THE POWERS AND DUTIES OF THE WATER QUALITY CONTROL COMMISSION AND THE DEPARTMENT OF ENVIRONMENT PERTAINING TO REGULATION OF UTILITY OPERATORS; INCREASING FEES; PROVIDING FOR HEARINGS AND APPEALS; 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] department as being qualified to operate one of the classifications of public water supply systems or public 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;
F. "operate" means performing any activity, function, process control decision or system integrity decision regarding water quality or water quantity that has the potential to affect the proper functioning of a public water supply system or public wastewater facility or to affect human health, public welfare or the environment;
G. "person" means any agency, department or instrumentality of the United States and any of [their] its 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. "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. "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] department.
[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.]
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 operators or public wastewater facility operators;
(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 Subsection A of Section 61-33-4 NMSA 1978;
(3) enter into agreements, contracts or cooperative arrangements with persons; and
(4) receive and accept financial and technical assistance."
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 may adopt rules relating to the administration and enforcement of the Utility Operators Certification Act. The commission shall:
A. adopt [regulations] rules that classify public water supply systems and public wastewater facilities [into categories 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] rules 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 public water supply systems and public wastewater facilities, adopt [regulations] rules and advise the department on the administration of 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 rules providing criteria for identifying the minimum number of certified operators needed to operate the various classifications of public water supply systems or public wastewater facilities in order to protect human health, public welfare or the environment."
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--FUND CREATED--ENDORSEMENT.--
A. [Each] An applicant for certification as [a public water supply system operator or public wastewater facility] a certified 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] rule 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
(c)] (b) for [the annual] renewal of a certificate after a period set by rule. . . . . . [10.00] $200;
and
[(d)] (c) 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] The 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] administering and enforcing the Utility Operators Certification Act. The fund shall be administered by the department. Money in the fund is appropriated to the department. Balances in the fund at the end of any 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] an 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.
D. Fees shall not be increased more than once per calendar year. The first increase of the fees shall not result in any fee greater than fifty dollars ($50.00). Any subsequent increase of the fees shall not be more than ten percent of the existing fee. The ten percent increase allowed each calendar year may be accrued over time."
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--PROHIBITION.--It is unlawful to operate [any] or allow the operation of a 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] who meets or exceeds the appropriate certification level."
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 shall, under] department, in accordance with the provisions of the Uniform Licensing Act relating to notice and hearing, may suspend or revoke [any] a certification upon the grounds that the certified operator:
A. [is guilty of] committed fraud or deceit in procuring [his] the certification;
B. [is guilty of] committed 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 is certified, except under the direct supervision of a certified operator who meets or exceeds the appropriate certification level for that classification of public water supply system or public wastewater facility; 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] an operator to:
(1) use the title "certified operator" or words of similar import in connection with his employment;
(2) represent himself as a certified [public water supply system operator or a certified public wastewater facility] operator; or
(3) perform the duties of a [supervisor or] certified 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 operator of a public water supply system or a public wastewater facility who is not certified by the commission], except under the direct supervision of a certified operator who meets or exceeds the appropriate certification level for that classification of public water supply system or public wastewater facility.
[C.] B. Any violation of the provisions of this section is a misdemeanor."
Section 8. 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] a person has violated, is violating or threatens to violate any requirement of the Utility Operators Certification Act, any [regulation] rule 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] rule 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. A complete record of the proceedings shall be made and preserved.
F. The [commission] department may appoint [an independent] a hearing officer to preside over [any] the public hearing held pursuant to this section. [The hearing officer shall make and preserve a complete record of the proceedings and] If a hearing officer is appointed, he shall forward his recommendation based upon the record to the [commission, which] secretary of environment, who 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. A person aggrieved by an adverse final decision of the secretary may appeal the decision to the commission. The appeal shall be on the record. The commission may, upon motion by a party, receive either oral or written arguments by the parties limited to the evidence contained in the record.
[H.] I. All penalties collected pursuant to [a compliance order] this section shall be deposited in the general fund to the credit of the current school fund."
Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2004.
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