Fiscal impact
reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for
standing finance committees of the NM Legislature. The LFC does not assume
responsibility for the accuracy of these reports if they are used for other
purposes.
Current FIRs (in
HTML & Adobe PDF formats) are available on the NM Legislative Website (legis.state.nm.us). Adobe PDF versions include all attachments,
whereas HTML versions may not.
Previously issued FIRs and attachments may also be obtained from the LFC
in
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SPONSOR |
Heaton |
DATE TYPED |
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HB |
206/aHENRC |
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SHORT
TITLE |
Eliminate De Novo Water Quality Hearings |
SB |
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ANALYST |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY04 |
FY05 |
FY04 |
FY05 |
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See Narrative |
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LFC Files
Responses
Received From
Attorney
General’s Office (AGO)
Environment
Department (ED)
SUMMARY
Synopsis of HENRC
Amendment
The
House Energy & Natural Resources Committee amendment simplifies and
enlarges the public notice requirements. It also allows a party who has not had
a reasonable opportunity to submit comment or evidence at the original
permitting hearing to be heard on the record by the original constituent
agency.
Synopsis of Original Bill
House Bill 206 changes the permit hearing
process for the ED and other constituent agencies under the Water Quality Act (WQA).
Under current statutory authority, permitting
actions and certifications of federal permits under the WQA may be subject to a
full evidentiary hearing before a constituent agency. Agency final permitting actions and
certifications under WQA may be appealed to the Water Quality Control Commission
(WQCC). Presently, even if there was a
full evidentiary hearing on a permit before a constituent agency, an appeal of
the agency permitting action or certification takes the form of a de novo
evidentiary hearing before the WQCC.
This can result in two full evidentiary hearings on the same
permit.
HB 206 amends Section 74-6-5 of the WQA to
provide that an appeal of an agency permitting action will be conducted as a
record review by the WQCC, instead of conducted as a de novo evidentiary
hearing. This WQCC will perform a review
of the record created before the constituent agency instead of conducting an
entirely new hearing on the same permit.
Presently in appeal proceedings, based upon the
record before it, the WQCC will sustain, modify or reverse the action of the
agency. However, under HB 206 the WQCC
is not bound by the factual findings or legal conclusions of the constituent
agency, and may develop its own findings and conclusions based on the evidence
contained in the record.
The bill directs that appeals of water quality
permits be taken to State District Court instead of the Court of Appeals. Appeals of regulations adopted shall be taken
to the Court of Appeals.
Significant Issues
ED states that the two evidentiary hearings
currently provided for are redundant, time consuming and costly for ED, the
regulated community and the public. The
proposed amendment is consistent with basic principles of administrative law as
well as permitting procedures under federal environmental statutes. In general, evidentiary hearings are held
before the administrative agency with expertise in the matter, in this case
ED. Appeals from the administrative
agency generally take the form of an appeal, which involves a review of the
record created below, not another full evidentiary hearing on the same
matter. It is generally recognized that
two full evidentiary hearings on the same matter is unnecessary and not a wise
use of limited resources.
Under the provisions of this bill, the WQCC may
remand the matter to the agency to take additional evidence or comment if,
before the date set for the review, a party shows to the satisfaction of the
WQCC that there was no opportunity to submit the additional evidence or comment
on an issue being challenged. If the
WQCC orders the agency to take additional evidence, the agency may revise its
decision. The agency must file with the
WQCC the record of the additional evidence together with any modified findings
and decision.
ED supports the streamlining of the hearing
process, but would like to see an expanded notice for the initial public
evidentiary hearing, since the appeal hearing will be limited to a review of
the record.
ED notes that currently, all appeals of water
quality permits and regulations adopted are taken to the Court of Appeals. This bill will require permit appeals to be
taken to a state district court. It will increase the expenses to the ED to
handle actions all over the State.
FISCAL IMPLICATIONS
HB 206 will greatly reduce the financial burden
of duplicative air permitting hearings on ED.
ED claims they are not provided with sufficient budget to cover the cost
of the initial hearing and a second evidentiary hearing. The costs to ED for the 2002 Phelps Dodge
Tyrone permit appeal hearing were more than $249,000. This does not include
costs that the public and the requestor incurred to present their cases in each
hearing.
ADMINISTRATIVE IMPLICATIONS
Elimination of duplicative hearings will have a
positive administrative impact on ED. Duplicative
hearings take staff resources from their core work assignments which are to
issue and oversee water quality permits.
DW/lg:dm