SENATE BILL 880
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Linda M. Lopez
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; PROVIDING FOR CITIZEN ENFORCEMENT.
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. PURPOSES.--The purposes of the New Mexico Environmental Health Act are to:
A. require that the department of environment consider the effects of decisions that may have a significant impact on New Mexico communities; and
B. provide affected individuals and communities with a means to address decisions of the department of environment that violate the provisions of the New Mexico Environmental Health Act.
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; and
(2) will or may 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 or may have a significant present, future or cumulative impact on the public health, environment or traditional and sustainable cultural values 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;
(3) issue, renew or amend any permit with terms or conditions;
(4) issue, renew, amend or deny any variance or waiver;
(5) issue, renew or amend any variance or waiver with terms or conditions; or
(6) provide funding for a regulated facility;
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, environment or traditional and sustainable cultural values 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 may have a significant present, future or cumulative impact on the public health, environment or traditional and sustainable cultural values of the residents of a community, and that is:
(1) authorized to be constructed or operated by a decision of the department;
(2) governed by a permit or other authorization issued by a department; or
(3) funded in whole or in part by funds dispensed, generated or provided by or through the department.
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 by a contractor designated by the department and shall be paid for by the owner or operator of the regulated facility or, if the regulated facility is proposed, the person proposing the facility. To the maximum extent possible, the community impact assessment report shall be written in plain language that can be understood by the residents of any community that will or may be affected by the regulated facility. The community impact assessment report also shall be written in English and in any written language or languages other than English that are estimated by the department to be spoken in more than 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, including the most recent United States census data showing the ethnic and racial populations and income level in that community;
(2) the present, future and cumulative impacts that the decision significantly affecting a community will or may have on the public health, environment or traditional and sustainable cultural values of each community;
(3) the other known existing and proposed regulated facilities that will or may have an impact on the public health, environment or traditional and sustainable cultural values of each community; and
(4) any other known environmental factors that will or may have an impact on the public health, environment or traditional and sustainable cultural values of each community.
Section 5. PUBLIC NOTICE REQUIREMENTS.--For any decision significantly affecting a community for which a community impact assessment report is required, after the completion of the community impact assessment report but prior to making the decision significantly affecting a community, 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 at least the following manner:
A. actual written notice of the application and the proceeding shall be given to the owners of record of properties that are adjacent to the property on which the regulated facility is or is proposed to be located;
B. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be published in a newspaper of general circulation in each affected community;
C. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be sent by first class mail to all persons who have requested notice of applications, hearings, opportunities for hearings or other proceedings concerning the facility or type of facility that is the subject of the application, hearing, opportunity for hearing or other proceeding;
D. notice of the application and the proceeding, including any public hearing or opportunity for a public hearing and the manner in which a hearing may be requested, shall be provided as early as possible on the web site of the department;
E. the written and published notice provided for in Subsections A through D of this section shall also be provided to residents of each community in at least one other medium, including radio or television, in a manner designed to reach the maximum number of members of each community;
F. the written and published notice provided for in Subsections A through D of this section shall:
(1) be in English and in any other written language or languages other than English that are estimated by the department to be spoken in more than five percent of the homes in a community;
(2) include a description of the existing or proposed regulated facility, and of the application or other request for the decision;
(3) describe where an interested person may obtain a copy of the community impact assessment report; and
(4) include a statement indicating whether a public hearing will be held or the procedure that should be followed to request a public hearing; and
G. the notice to be published shall also be published in a place in the newspaper calculated to give members of the public the most effective notice.
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. CITIZEN ENFORCEMENT.--
A. A person having an interest that is or may be adversely affected by a violation of the New Mexico Environmental Health Act or any rule adopted pursuant to that act may commence a civil action on the person's own behalf against the department to compel compliance with that act.
B. No action shall be commenced pursuant to this section prior to sixty days after the plaintiff has given written notice to the department and to the attorney general; provided, however, that when the violation complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action pursuant to this section may be brought immediately after notification to the proper parties.
C. Suits brought pursuant to this section shall be brought in the district court for Santa Fe county.
D. The court, in issuing a final order in an action brought pursuant to this section, may award costs of litigation, including attorney and expert witness fees, to a prevailing party or as justice requires.
E. An action that may be brought pursuant to this section does not replace or modify any other remedy that the plaintiff may have, and the plaintiff may elect to use any or all of those remedies, in addition to a suit brought pursuant to this section.
Section 8. 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.
Section 9. STRICTER REQUIREMENTS NOT AFFECTED.--Nothing in the New Mexico Environmental Health Act shall be construed to preempt more stringent or more extensive requirements of any rules adopted for any program administered by the department.
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