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F I S C A L I M P A C T R E P O R T

SPONSOR HJC

DATE TYPED 3/15/05

HB 269HJCS/aHFl#l

SHORT TITLE Recycling and Illegal Dumping Act

SB

ANALYST Hadwiger

APPROPRIATION

(in $000s)

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

($800.0)

Recurring

Tire Recycling Fund

$800.0

Recurring Recycling and Illegal

Dumping Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Companion to HB269

REVENUE

Estimated Revenue

Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY05

FY06

($800.0)

($800.0)

Recurring

Tire Recycling Fund

$800.0

$800.0

Recurring

Recycling and Illegal

Dumping Fund

(Parenthesis ( ) Indicate Revenue Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the Attorney General (AG)

Department of Environment (DE)

Corrections Department (CD)

Department of Transportation (DOT)

Public Defender Department (PDD)

No comments were received from the Department of Finance and Administration, New Mexico

Association of Counties or New Mexico Municipal League at the time this FIR was written.

House Bill 269/HJCSaHFl#l -- Page 2

SUMMARY

Synopsis of House Floor Amendment

The House Floor Amendment would clarify the definition of “illegal dumpsite.”

Synopsis of HJC Substitute for HB269

The original bill would have enacted the Recycling and Illegal Dumping Act and repeal the Tire

Recycling Act (Sections 74-11-1 to 74-11-17 NMSA 1978). In particular, the bill would make

the following changes to existing statute:

1.

Creates the Recycling and Illegal Dumping Alliance, including representatives from state

and local government, solid waste authorities, industry waste generators, tribal govern-

ments, nonprofit organizations, recycling companies, retailers, and waste management

companies. The Alliance would:

a.

Develop strategies to increase recycling and decrease illegal dumping in New

Mexico.

b.

Create a state recycling plan and update the plan every three years to measure pro-

gress and modify strategies.

c.

Review and make recommendations for funding grant applications from the recy-

cling and illegal dumping fund.

2.

Prohibits storing or using in a civil engineering application more than 100 scrap tires

without a valid permit from the New Mexico Department of Environment (NMED).

3.

Prohibits transport of scrap tires for money to a place other than a tire recycling facility,

with specified exceptions.

4.

Prohibits a scrap tire generator from releasing scrap tires to a person other than a regis-

tered scrap tire hauler or registered commercial waste hauler.

5.

Prohibits open burning of tires.

6.

Prohibits storage or disposal of scrap tires or tire-derived products in a manner that cre-

ates a public nuisance, promotes disease vectors, creates the potential for fire or other

health or environmental hazards.

7.

Except for agricultural uses as specified, prohibits storing scrap tires or tire-derived prod-

ucts for more than 12 months unless authorized by the NMED cabinet secretary.

8.

Prohibits scrap tire haulers from transporting scrap tires without a scrap tire manifest ap-

proved by NMED.

9.

Allows the NMED secretary or his/her representative to:

a.

Enter a facility of a scrap tire generator, scrap tire hauler, or tire recycling facility

at any reasonable time to make an inspection or investigation of solid waste man-

agement practices.

b.

Take and analyze samples of the facility’s waste, soil, air or water to detect con-

taminants.

c.

Conduct monitoring or testing of equipment, contents or surrounding soil, air, sur-

face water or ground water at the facility.

d.

Conduct weigh stations or other site inspections of scrap tire haulers in coordina-

tion with the Transportation secretary.

10.

Sets rules regarding confidentiality of records obtained in inspections, including criminal

penalties for failure to protect the confidentiality of the records.

11.

Adds to the list of rules that shall be adopted by the Environmental Improvement Board

House Bill 269/HJCSaHFl#l -- Page 3

with respect to tire recycling:

a.

Record keeping requirements for tire recycling facilities, scrap tire haulers, and

scrap tire generators

b.

Financial assurance criteria for tire recycling facilities

c.

Fire rules for storage of scrap tires and tire-derived products that are consistent

with those adopted by the State Fire Marshall.

d.

Requirements and procedures for a scrap tire manifest system

e.

A fee schedule applicable to scrap tire haulers and tire recycling facilities no to

exceed the estimated cost of investigating and issuing permits and registrations

and conducting regulatory oversight

f.

A fee schedule applicable to scrap tire generators not exceeding the estimated cost

of conducting regulatory oversight.

12.

Requires scrap tire generators who transport scrap tires for specified purposes to com-

plete a scrap tire manifest and to show such manifest when a load is being transported

upon demand to an officer of the Motor Transportation Division of the Department of

Public Safety.

13.

Increases the potential penalty assessed in a compliance order from $2,500.00 per day to

$5,000.00 per day of noncompliance with each violation.

14.

Requires reasonable specificity in compliance orders with regard to the nature of the cor-

rective action to be taken and time for compliance.

15.

Allows compliance orders to be issued against an insurer or guarantor of an owner of a

tire recycling facility if the owner is in bankruptcy or reorganization or if the jurisdiction

in a state or federal court cannot with reasonable diligence be obtained over an owner

likely to be solvent at the time of the judgment.

16.

Allows appeals up to 30 days after a compliance order is issued (compared to 15 days

under current statute). Provided for judicial review of administrative actions in appellate

court based on specified criteria.

17.

Allows local government authorities to issue field citations for minor violations.

18.

Establishes criminal penalties for violations of Section 4 of the Act, including:

a.

If the violation involves a quantity of scrap tires is less than 5,000 pounds, a mis-

demeanor

b.

If the violation involves a quantity of scrap tires that is 5,000 pounds or greater, a

fourth degree felony.

c.

Persons convicted of a second or subsequent violation would be guilty of a third

degree felony.

d.

Persons who knowingly omit substantive information or make false statements

would be guilty of a fourth degree felony.

19.

Expands eligibility for grants under this Act to include Indian nations, pueblos, tribes and

land grant communities.

20.

Expands eligible expenditures of grants under this Act to include purchase of equipment,

marketing, purchasing products produced by a recycling facility, providing educational

outreach, developing recycling infrastructure, abating illegal dumpsites and contracting

with vendors to promote recycling.

21.

Requires that at least 2/3 of budgeted grant money in each fiscal year be allocated to tire

abatement and recycling and the remaining 1/3 be allocated to abatement of illegal dump-

ing and recycling of other solid wastes.

22.

Creates a Recycling and Illegal Dumping Fund to replace the existing Tire Recycling

Fund. Expenditures from the Tire Recycling Fund were limited to “abatement of tire

dumps, for reprocessing, transportation or recycling of scrap tires, for providing annual

House Bill 269/HJCSaHFl#l -- Page 4

retread rebates and for carrying out the provisions of the Tire Recycling Act.” The new

fund is less restrictive, allowing expenditures for abatement of illegal dump sites gener-

ally, as well as for processing all recycling materials. The annual retread rebates are not

included in the new text.

23.

Specifies that regulations enacted pursuant to the Tire Recycling Act would continue in

force until amended or repealed. Repeal of that act would not affect prior violations and

permits and registrations issued pursuant to that act would remain in effect until they ex-

pire, are suspended, revoked or otherwise modified.

The House Judiciary Committee Substitute for HB269 makes the following changes from the

original bill:

1.

Deletes the findings portion.

2.

Eliminates specified exemption of “construction projects that impact water courses or

wetlands” in the definition of “agricultural use.”

3.

Excludes persons who generate scrap tires in agricultural operations from the definition

of “scrap tire generator.”

4.

Modifies the tire recycling facility exemption to include specified businesses where tires

are kept in an enclosure.

5.

Changes NMED employee access to a facility of a scrap tire generator to any “reasonable

time for the purpose of making a routine inspection or investigation of scrap tire man-

agement practices based on reasonable evidence of a violation of the Act.”

6.

Specifies composition of the Recycling and Illegal Dumping Alliance to include one

member from each state government, local government, a solid waste authority, an indus-

try waste generator, a tribal government, a nonprofit organization, a recycling company, a

retailer, an agricultural producer, a soil and water conservation district, a waste manage-

ment company, and the public at large.

7.

Sets two-year terms for members of the Alliance with no compensation from the state.

8.

Allows NMED to contract for abatement of illegal dumpsites located within a solid waste

authority.

9.

Deletes the provision that would have allowed compliance orders to be issued against an

insurer or guarantor of an owner of a tire recycling facility if the owner is in bankruptcy

or reorganization or if the jurisdiction in a state or federal court cannot with reasonable

diligence be obtained over an owner likely to be solvent at the time of the judgment.

10.

Provides for appeals per Section 39-3-1.1 NMSA 1978 (which details agency responsi-

bilities for reporting the final decision, as well as right to appeal to the district court.)

11.

Eliminates the penalty for persons convicted of a second or subsequent violation.

12.

Makes solid waste authorities eligible for grants under the Act.

13.

Sets the first priority for funding from grants as abatement of illegal scrap tire dumpsites

and recycling of scrap tires.

14.

Allows qualified entities to apply for grants to public landfills to offset the cost of collect-

ing or recycling tires or to submit competitive bids for loans for specified costs related to

recycling and illegal dumpsite abatement.

15.

Allows funds in the Recycling and Illegal Dumping Fund to be used by public landfills to

offset the cost of collecting or recycling tires.

Significant Issues

According to NMED, HB269 supports one of three recommendations stemming from the Strate-

House Bill 269/HJCSaHFl#l -- Page 5

gic Plan to Transform the Economics of Recycling which was prepared in response to a 2004

House Joint Memorial. Significant issues include the expanded focus on all recycling, thereby

providing improved infrastructure for recycling and providing for the abatement of illegal dump-

sites in New Mexico. HB269 provides the beginning of a strategic and coordinated approach to

resource protection and conservation through improved recycling and the abatement of illegal

dumpsites.

According to the Office of the Attorney General, HB269 provides that all records obtained by

NMED pursuant to the Recycling Act are public unless deemed confidential by NMED pursuant

to the provisions of USCA Section 1905. As drafted it is unclear whether HB269 wishes to

adopt the provisions of 18 USCA Section 1905 and make it a criminal offense under state law to

disclose confidential information. As drafted 18 USCA Section 1905 would not be applicable at

this is federal law and only applies to the disclosure of confidential information by officers or

employees of the United States government.

FISCAL IMPLICATIONS

Continuing Appropriations

This bill creates a new fund, the Recycling and Illegal Dumping Fund to replace the existing Tire

Recycling Fund, and provides for continuing appropriations. The LFC is concerned about in-

cluding continuing appropriation language in the statutory provisions for newly created funds.

Earmarking reduces the ability of the legislature to establish spending priorities.

ADMINISTRATIVE IMPLICATIONS

NMED anticipates HB269 could be administered within the existing structure and staff of the

agency.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

SB142/SJCS is similar to HB269/HJCS.

OTHER SUBSTANTIVE ISSUES

The Corrections Department does not anticipate a significant impact on the number of people

incarcerated from the penalties included in this bill.

DH/yr:lg