HB 23

Page 1

AN ACT

RELATING TO ENVIRONMENT; PROVIDING PENALTIES AND REMEDIES FOR

FAILURE TO OBEY COMPLIANCE ORDERS; AUTHORIZING ENFORCEMENT

ACTIONS.

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

Section 1. Section 74-2-12 NMSA 1978 (being Laws 1992,

Chapter 20, Section 14, as amended) is amended to read:

"74-2-12. ENFORCEMENT--COMPLIANCE ORDERS--FIELD

CITATIONS.--

A. When, on the basis of any information, the

secretary or the director determines that a person has

violated or is violating a requirement or prohibition of the

Air Quality Control Act, a regulation promulgated pursuant to

that act or a condition of a permit issued under that act, the

secretary or the director may:

(1) issue a compliance order within one year

after the violation becomes known by the department or the

local agency stating with reasonable specificity the nature of

the violation and requiring compliance immediately or within a

specified time period or assessing a civil penalty for a past

or current violation, or both; or

(2) commence a civil action in district

court for appropriate relief, including a temporary or

permanent injunction.

HB 23

Page 2

B. An order issued pursuant to Subsection A of

this section may include a suspension or revocation of the

permit or portion thereof issued by the secretary or the

director that is alleged to have been violated. Any penalty

assessed in the order shall not exceed fifteen thousand

dollars ($15,000) per day of noncompliance for each violation.

C. An order issued pursuant to Subsection A of

this section shall become final unless, no later than thirty

days after the order is served, the person named therein

submits a written request to the secretary or the director for

a public hearing. Upon such request, the secretary or the

director shall promptly conduct a public hearing. The

secretary or the director shall appoint an independent hearing

officer to preside over the public hearing. The hearing

officer shall make and preserve a complete record of the

proceedings and forward the hearing officer's recommendation

based thereon to the secretary or the director, who shall make

the final decision.

D. The environmental improvement board or the

local board may implement a field citation program through

regulations establishing appropriate minor violations for

which field citations assessing civil penalties not to exceed

one thousand dollars ($1,000) per day of violation may be

issued by officers or employees of the department or the local

agency as designated by the secretary or the director.

HB 23

Page 3

E. A person to whom a field citation is issued

pursuant to Subsection D of this section may, within a

reasonable time as prescribed by regulation by the

environmental improvement board or the local board, elect to

pay the penalty assessment or to request a hearing by the

issuing agency on the field citation. If a request for

hearing is not made within the time specified in the

regulation, the penalty assessment in the field citation shall

be final.

F. Payment of a civil penalty required by a field

citation issued pursuant to Subsection D of this section shall

not be a defense to further enforcement by the department or

the local agency to correct a violation or to assess the

maximum statutory penalty pursuant to other authorities in the

Air Quality Control Act if the violation continues.

G. In determining the amount of a penalty to be

assessed pursuant to this section, the secretary, the director

or the person issuing a field citation shall take into account

the seriousness of the violation, any good-faith efforts to

comply with the applicable requirements and other relevant

factors.

H. In connection with a proceeding under this

section, the secretary or the director may issue subpoenas for

the attendance and testimony of witnesses and the production

of relevant papers, books and documents and may adopt rules

HB 23

Page 4

for discovery procedures.

I. If a person fails to comply with an

administrative order, the secretary or director may initiate

an action to suspend or revoke the permit, or portion thereof,

alleged to have been violated or to commence a civil action in

district court to enforce the order, or to suspend or revoke

the permit, or both.

J. If a person fails to pay an assessment of a

civil penalty, the secretary or director may commence a civil

action in district court to collect the civil penalties

assessed in the order.

K. Penalties collected pursuant to this section

shall be deposited in the:

(1) municipal or county general fund, as

applicable, if the administrative order or field citation was

directed to a source located within a local authority; or

(2) state general fund if the administrative

order or field citation was directed to any other source."

Section 2. Section 74-2-12.1 NMSA 1978 (being Laws

1992, Chapter 20, Section 15, as amended) is amended to read:

"74-2-12.1. CIVIL PENALTY--REPRESENTATION OF DEPARTMENT

OR LOCAL AUTHORITY--LIMITATION OF ACTIONS.--

A. A person who violates a provision of the Air

Quality Control Act or a regulation, permit condition or

emergency order adopted or issued pursuant to that act may be

assessed a civil penalty not to exceed fifteen thousand

dollars ($15,000) for each day during any portion of which a

violation occurs.

B. A person who fails to comply with an

administrative order issued pursuant to Section 74-2-12 NMSA

1978 may be assessed, pursuant to a court order, a civil

penalty of not more than twenty-five thousand dollars

($25,000) for each day of noncompliance with the order.

C. In an action to enforce the provisions of the

Air Quality Control Act or an ordinance, regulation, permit

condition or order, adopted, imposed or issued pursuant to

that act:

(1) the department shall be represented by

the attorney general;

(2) a local authority that is a municipality

shall be represented by the attorney of the municipality; and

(3) a local authority that is a county shall

be represented by the district attorney within whose judicial

district the county lies.

D. No action for civil penalty shall be commenced

more than five years from the date the violation was known by

the department or the local agency." HB 23

Page 5