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AN ACT

RELATING TO THE ENVIRONMENT; AMENDING SECTIONS OF THE

HAZARDOUS WASTE ACT TO ALLOW VOLUNTARY FEE AGREEMENTS AS AN

ALTERNATIVE TO FEE SCHEDULES.

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

Section 1. Section 74-4-4.2 NMSA 1978 (being Laws 1981

(1st S.S.), Chapter 8, Section 6, as amended) is amended to

read:

"74-4-4.2. PERMITS--ISSUANCE--DENIAL--MODIFICATION--

SUSPENSION--REVOCATION.--

A. An application for a permit pursuant to the

Hazardous Waste Act shall contain information required

pursuant to Section 74-4-4.7 NMSA 1978 or to regulations

promulgated by the board and shall include:

(1) estimates of the composition, quantity

and concentration of any hazardous waste identified or listed

under Subsection A of Section 74-4-4 NMSA 1978 or combinations

of any hazardous waste and other solid waste proposed to be

disposed of, treated, transported or stored and the time,

frequency or rate at which the waste is proposed to be

disposed of, treated, transported or stored; and

(2) an identification and description of,

and other pertinent information about, the site where

hazardous waste or the products of treatment of hazardous

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waste will be disposed of, treated, transported to or stored.

B. Hazardous waste permits shall require

corrective action for all releases of hazardous waste or

constituents from any solid waste management unit at a

treatment, storage or disposal facility seeking a permit under

this section.

C. The department shall provide timely review on

all permit applications. Upon a determination by the

secretary that the applicant has met the requirements adopted

pursuant to Section 74-4-4 NMSA 1978, the secretary may issue

a permit or a permit subject to any conditions necessary to

protect human health and the environment for the facility.

D. The secretary may deny any permit application

or modify, suspend or revoke any permit issued pursuant to the

Hazardous Waste Act if the applicant or permittee has:

(1) knowingly and willfully misrepresented a

material fact in the application for a permit;

(2) refused to disclose the information

required under the provisions of Section 74-4-4.7 NMSA 1978;

(3) been convicted in any court, within ten

years immediately preceding the date of submission of the

permit application, of:

(a) a felony or other crime involving

moral turpitude; or

(b) a crime defined by state or federal

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statutes as involving or being in restraint of trade, price-

fixing, bribery or fraud;

(4) exhibited a history of willful disregard

for environmental laws of any state or the United States;

(5) had any permit revoked or permanently

suspended for cause under the environmental laws of any state

or the United States; or

(6) violated any provision of the Hazardous

Waste Act, any regulation adopted and promulgated pursuant to

that act or any condition of a permit issued under that act.

E. In making a finding under Subsection D of this

section, the secretary may consider aggravating and mitigating

factors.

F. If an applicant or permittee whose permit is

being considered for denial or revocation, respectively, on

any basis provided by Subsection D of this section has

submitted an action plan that has been approved in writing by

the secretary, and plan approval includes a period of

operation under a conditional permit that will allow the

applicant or permittee a reasonable opportunity to demonstrate

its rehabilitation, the secretary may issue a conditional

permit for a reasonable period of time. In approving an

action plan intended to demonstrate rehabilitation, the

secretary may consider:

(1) implementation by the applicant or

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permittee of formal policies;

(2) training programs and management control

to minimize and prevent the occurrence of future violations;

(3) installation by the applicant or

permittee of internal environmental auditing programs;

(4) the applicant's release or the

permittee's release subsequent to serving a period of

incarceration or paying a fine, or both, after conviction of

any crime listed in Subsection D of this section; and

(5) any other factors the secretary deems

relevant.

G. Notwithstanding the provisions of Subsection D

of this section:

(1) a research, development and

demonstration permit may be terminated upon the determination

by the secretary that termination is necessary to protect

human health or the environment; and

(2) a permit may be modified at the request

of the permittee for just cause as demonstrated by the

permittee.

H. No ruling shall be made on permit issuance,

major modification, suspension or revocation without an

opportunity for a public hearing at which all interested

persons shall be given a reasonable chance to submit data,

views or arguments orally or in writing and to examine

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witnesses testifying at the hearing; provided, however, that

the secretary may, pursuant to Section 74-4-10 NMSA 1978,

order the immediate termination of a research development and

demonstration permit whenever the secretary determines that

termination is necessary to protect human health or the

environment and may order the immediate suspension or

revocation of a permit for a facility that has been ordered to

take corrective action or other response measures for releases

of hazardous waste into the environment.

I. The secretary shall hold a public hearing on a

minor permit modification if the secretary determines that

there is significant public interest in the minor

modification.

J. The board shall provide a schedule of fees for

businesses generating hazardous waste, conducting permitted

hazardous waste management activities or seeking a permit for

the management of hazardous waste, including but not limited

to:

(1) a hazardous waste business fee

applicable to any business engaged in a regulated hazardous

waste activity, which shall be an annual flat fee based on the

type of activity;

(2) a hazardous waste generation fee

applicable to any business generating hazardous waste, which

shall be based on the quantity of hazardous waste generated

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annually; however, when any material listed in Paragraph (2)

of Subsection K of Section 74-4-3 NMSA 1978 is determined by

the board to be subject to regulation under Subtitle C of the

federal Resource Conservation and Recovery Act of 1976, the

board may set a generation fee under this paragraph for that

waste based on its volume, toxicity, mobility and economic

impact on the regulated entity;

(3) a hazardous waste permit application

fee, not exceeding the estimated cost of investigating the

application and issuing the permit, to be paid at the time the

secretary notifies the applicant by certified mail that the

application has been deemed administratively complete and a

technical review is scheduled; and

(4) an annual hazardous waste permit

management fee based on and not exceeding the estimated cost

of conducting regulatory oversight of permitted activities.

K. The department and a business generating

hazardous waste, conducting permitted hazardous waste

management activities or seeking a permit for the management

of hazardous waste may enter into a voluntary fee agreement in

addition to and that includes all of the fees required by

Subsection J of this section."

Section 2. Section 74-4-4.5 NMSA 1978 (being Laws 1987,

Chapter 179, Section 7, as amended) is amended to read:

"74-4-4.5. HAZARDOUS WASTE FUND CREATED--

APPROPRIATION.--

A. There is created in the state treasury the

"hazardous waste fund", which shall be administered by the

department. All balances in the fund are appropriated to the

department for the sole purpose of meeting necessary expenses

in the administration and operation of the hazardous waste

program.

B. All fees collected pursuant to Section 74-4-4.2

NMSA 1978 shall be transmitted to the state treasurer for

credit to the hazardous waste fund."

Section 3. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2006. HB 410

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