HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE SUBSTITUTE FOR

HOUSE BILL 888

48th legislature - STATE OF NEW MEXICO - first session, 2007

AN ACT

RELATING TO THE ENVIRONMENT; ENACTING THE NEW MEXICO ENVIRONMENTAL HEALTH ACT; REQUIRING NOTICE AND COMMUNITY IMPACT ASSESSMENT REPORTS PRIOR TO CERTAIN ACTIONS BY THE DEPARTMENT OF ENVIRONMENT.

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

     Section 1. SHORT TITLE.--This act may be cited as the "New Mexico Environmental Health Act".

     Section 2. PURPOSE.--The purpose of the New Mexico Environmental Health Act is to require that the department of environment consider the effects of decisions that may have a significant impact on New Mexico communities.

     Section 3. DEFINITIONS.--As used in the New Mexico Environmental Health Act:

          A. "community" means an area of human habitation within New Mexico that:

                (1) includes at least fifty individuals within one square mile of each other and within five miles of the geographic center of the regulated facility at issue; and

                (2) will be affected by a decision significantly affecting a community;

          B. "cumulative impact" means the impact that results from the incremental impact of the action at issue when added to the impact from other past, present and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time;

          C. "decision significantly affecting a community" means a determination by the department pertaining to a regulated facility that will have a significant present, future or cumulative impact on the public health, safety, welfare or environment of the residents of a community. A "decision significantly affecting a community" may include any decision by the department to:

                (1) certify compliance with any applicable state or United States statute or rule;

                (2) issue, renew, amend or deny any permit; or

                (3) issue, renew or amend any permit with terms or conditions;

          D. "department" means the department of environment and any of its employees or agents;

          E. "impact" means a present, future or cumulative significant effect on the public health, safety, welfare or environment of the residents of a community;

          F. "proceeding" means any department administrative or other process that could result in a decision significantly affecting a community; and

          G. "regulated facility" means an entity or operation, whether privately or publicly owned and operated, that has or will have a significant present, future or cumulative impact on the public health, safety, welfare or environment of the residents of a community, and that is authorized to be constructed or operated by a decision of the department or governed by a permit issued by the department. A "regulated facility":

                (1) includes:

                     (a) a solid waste facility permitted to be constructed or operated pursuant to the Solid Waste Act and rules issued pursuant to that act;

                     (b) a hazardous waste facility authorized to be constructed or operated pursuant to the Hazardous Waste Act and rules issued pursuant to that act;

                     (c) a facility that has obtained, or is

required to obtain, a Title V air quality permit pursuant to federal law and state rules; and

                     (d) a wastewater treatment plant or

other facility that is required to obtain a permit pursuant to the federal Water Pollution Control Act or the Water Quality Act, and that discharges at least one hundred thousand gallons per day; but

                (2) does not include a facility that does not have the potential individually to have a significant impact on a community, including a drinking water system, health clinic, restaurant, on-site liquid waste system or swimming pool.

     Section 4. COMMUNITY IMPACT ASSESSMENT REPORT REQUIRED.--

          A. Prior to making a decision significantly affecting a community, the owner or operator of the regulated facility or, if the regulated facility is proposed, the person proposing the facility shall cause to be prepared a community impact assessment report. The community impact assessment report shall be prepared pursuant to the following criteria:

                (1) the department shall compile a list of potential contractors qualified to prepare a community impact assessment report in the subject communities. To qualify, a potential contractor shall show a familiarity with the communities and a knowledge of the communities' resources and present issues facing the communities;

                (2) the owner or operator of the existing facility, or the person proposing a proposed facility, shall select a contractor to prepare the community impact assessment report from the list;

                (3) the owner or operator of the existing facility, or the person proposing a proposed facility, shall pay the cost of the report;

                (4) the community impact assessment report shall be written in plain language that can be understood by the residents of any community that will be affected by the regulated facility; and

                 (5) the community impact assessment report also shall be written in English and in any language or languages other than English that are estimated by the department to be spoken in more than thirty-five percent of the homes in a community.

          B. At a minimum, the community impact assessment report shall include the following:

                (1) the demographic makeup of each community, as shown by the most recent United States census data, including the ethnic, racial and linguistic populations and income level in that community;

                (2) the present, future and cumulative impacts that the decision significantly affecting a community will have on the public health, safety, welfare or environment of the residents of a community;  

                (3) the other known existing and proposed regulated facilities that will have an impact on the public health, safety, welfare or environment of the residents of a community; and

                (4) any other known environmental factors that will have an impact on the public health, safety, welfare or environment of the residents of a community.

     Section 5. PUBLIC NOTICE REQUIREMENTS.--For any decision significantly affecting a community for which a community impact assessment report is required, the department shall cause notice of the proceeding to be given to residents of each community. The notice shall be given at the time that the application or other request for the decision is filed, and shall be given in the manner that is prescribed by the statutes and rules that govern the regulated facility that is at issue. The notice shall explain the procedure by which residents of each community that is or will be affected by the decision significantly affecting a community may provide oral and written input into the community impact assessment report.

     Section 6. DEPARTMENT DECISION.--In making a decision significantly affecting a community, the department shall take into account a community impact assessment report prepared concerning the decision. The department shall explain in any written decision significantly affecting a community the manner in which the community impact assessment report has been taken into account.

     Section 7. RULES.--The secretary of environment shall promulgate such rules as are necessary to ensure compliance with the provisions of the New Mexico Environmental Health Act; provided that, in promulgating rules pursuant to this section, the secretary shall follow the notice and hearing procedures set forth in Section 74-1-9 NMSA 1978. At a minimum, the rules shall provide procedures for oral and written input into community impact assessment reports by residents of communities that are or will be affected by the decision affecting a community.  

     Section 8. APPLICABILITY--STRICTER REQUIREMENTS NOT AFFECTED--OTHER REQUIREMENT FOR COMMUNITY IMPACT ASSESSMENT.--          A. Nothing in the New Mexico Environmental Health Act shall be construed to preempt more extensive requirements of any statute or rule adopted for any program administered by the department.

          B. If a statute or rule adopted for a program administered by the department requires the preparation of a community impact assessment report, nothing in the New Mexico Environmental Health Act shall be construed to require the preparation of a second community impact assessment report.

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