Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

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

SPONSOR Nava

ORIGINAL DATE

LAST UPDATED

2-20-07

2-27-07 HB

SHORT TITLE Solid Waste Facility Permit Renewal Review

SB 1093

ANALYST Aubel

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$100.0 $100.0

$200.0 Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB 880 and HB 888

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Municipal League (NMML)

Department of Finance Administration (DFA)

Department of Health (DOH)

New Mexico Environment Department (NMED)

Response Pending

Attorney General’s office (AGO)

SUMMARY

Synopsis of Bill

Senate Bill 1093 adds a new section to the Solid Waste Act for the purpose of protecting public

health. The added regulations would:

•

Provide for an independent public health assessment to determine any deleterious or negative

health impact in surrounding communities to a solid waste facility seeking permit renewal;

•

Allow stakeholders in the permit renewal process to provide information regarding public

health issues;

•

Provide authority to refuse to issue a permit if certain negative public health impacts are

demonstrated in an assessment;

•

Require the applicant to pay the cost of the public health assessment; and

•

Assure that no permits would be issued until proposed regulations are adopted.

Senate Bill 1093 – Page

2

FISCAL IMPLICATIONS

NMED anticipates it would require at least two FTEs to manage this effort of implementing the

rules, coordinating activities with involved parties such as the DOH, and determining a method

for appropriate review and consideration of the public health assessment.

This bill may also have substantial impacts on local entities or economies if the new regulations

delayed permitting or resulted in denial of permitting for solid waste facilities found to have

"public health impacts." The cost of transporting solid waste can be substantial.

SIGNIFICANT ISSUES

From the 2000 Solid Waste Annual Report:

The New Mexico Solid Waste Act (Act), passed in 1990, required the development of a

comprehensive solid waste management program by December 1, 1992 with implementation by

July 1, 1994. The Act charged the Environment Department (NMED) with overseeing the

majority of the requirements in the Act and the development of a comprehensive solid waste

plan. The result was the New Mexico Solid Waste Management Plan that detailed statewide

protocol addressing solid waste regulations, recycling, source reduction, transformation, and

landfill disposal.

The regulatory mandates of the Act and the federal Resource Conservation and Recovery Act

(RCRA) are implemented in New Mexico through the Solid Waste Management Regulations (20

NMAC 9.1). These regulations became effective on August 17, 1994 and the U.S. Environmental

Protection Agency approved New Mexico’s solid waste program on December 23, 1994.

New solid waste facilities are required to be permitted prior to construction and operation.

According to the 2006 Solid Waste Bureau Report, New Mexico currently has 22 permitted

landfills. Other permitted facilities include two special waste landfills, 13 transfer stations, five

recycling facilities, two compost facilities, and one permitted processing facility. In 2005, two

solid waste facilities were permitted, one solid waste permit review was completed, 5 landfill

closures plans were approved, and 11 landfill plans were verified.

New Permitting

According to NMED, HB 1184’s proposed amendment to the Solid Waste Act would stop the

permit renewal process for at least eleven facilities until new regulations are promulgated

because a “grandfathering" provision is not included. Those applicants have complied with the

applicable regulations and the majority of those are at or very near the end of the review process.

All nine renewals are scheduled to have hearings before December 31, 2007.

NMED maintains that this revision of the review process would not only pose an undue fiscal

and regulatory burden to those applicants, it may initiate legal challenges by those applicants as a

retroactive application of law, as this new requirement would be placed upon applications long

after the legal date of filing the permit application. A response from the AGO has been

requested.

Senate Bill 1093 – Page

3

Permit Renewal

SB 1093 would require an independent “public assessment" to be carried out at when solid waste

facilities are seeking permit renewal to determine any negative health impact in surrounding

communities resulting from a solid waste facility. It would also prohibit the permit from being

reissued by NMED if "public health impacts" are demonstrated in the assessment.

Community Impact

DOH expresses a concern that citizens and nongovernmental officials in several communities

believe that current regulations do not permit stakeholders to present evidence regarding

potential harm to communities about solid waste disposal facilities. However, NMED states that

stakeholders, including residents in communities surrounding solid waste facilities, are currently

given opportunities to present information regarding quality-of-life issues as part of permit-

hearing process, including concerns about public health. This emphasis follows the decision of

the New Mexico Supreme Court in the Rhino landfill case (Colonias Development Council v.

Rhino Environmental Services, Inc., 138 N.M. 133, 117 P.3d 939 (2005)). In Rhino, the

Environment Department was forced to reevaluate a decision because it failed to consider

evidence on community impacts and cumulative impacts.

NMED also maintains that public health and epidemiological studies and assessments can and

have been undertaken at the request of a community by the Centers for Disease Control or New

Mexico Department of Health.

NMED’s Solid Waste Bureau is the first department to promulgate Environmental Justice

provisions in permitting regulations. Those regulations will become effective June 2007. Those

requirements stipulate specific procedures to evaluate clusters and other factors as part of the

permit consideration process.

Environment Justices is defined as follows:

The State of New Mexico is committed to affording all of its residents, including

communities of color and low-income communities, fair treatment and meaningful

involvement in the development, implementation, and enforcement of environmental laws,

regulations, and policies regardless of race, color, ethnicity, religion, income or

educational level;

The State of New Mexico is further committed to promoting the protection of human

health and the environment, empowerment via public involvement in the development,

implementation, and enforcement of environmental laws, regulations, and policies, and

the dissemination of information related to the environment to inform and educate,

especially in people of color and low-income communities. (E.J. E.O. 2005-056)

PERFORMANCE IMPLICATIONS

Groundwater quality and public health may be improved by the extra public scrutiny of the solid

waste projects.

Senate Bill 1093 – Page

4

The effective date of rulemaking is specified as no later than June 30, 2007. NMED maintains

that this timeline is most likely unrealistic and specifies that amending the Solid Waste Act to

require a public health assessment would require a significant period of time (about 18 months)

to complete an appropriate stakeholder process, develop rules, hold an Environmental

Improvement Board hearing and develop findings of fact. NMED bases its estimate of 18

months on the recent experience relative to the stakeholder process used to create modifications

to the Solid Waste Regulations to include Environmental Justice criteria. If enacted with these

timelines, the Governor’s performance measure A24 for NMED that streamlines the solid waste

facility permit hearings would be negatively impacted.

ADMINISTRATIVE IMPLICATIONS

Several responding agencies point out the difficulty of administering the intent of the bill without

clear definitions for key components of the bill, such as “public health assessments,"

“community", or “surrounding". Thus administering the intent could be open to subjective

interpretation.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to SB 880 and HB 888 (duplicate), which propose the enactment of the Environmental

Health Act.

OTHER SUBSTANTIVE ISSUES

DFA notes that the bill does not define the term "public health impacts" and, unlike many other

licensing and regulation situations, also does not appear to offer any sort of appeal process for

facility operators or any opportunity to take corrective action to resolve public health impacts

that are identified.

NMED notes that some facilities are nearing capacity for existing permitted solid-waste-disposal

cells and timely and fair consideration of the permit renewal is imperative to provide adequate

disposal services. Insufficient capacity may lead to illegal dumping, with accompanying risks to

public health and groundwater quality.

In addition, NMED maintains that additional delays for permit renewals will have significant

negative fiscal and operational impacts for those applicants. Some applicants have a significant

fiscal investment of hundreds of thousands of dollars to complete engineering designs, complete

on-site investigations, prepare expert testimony, prepare the permit package consisting of many

volumes, and conduct responses for additional information.

DFA points out that the overly broad standard set by the undefined term of "public health

impact" makes it likely that this legislation could result in litigation and instances where agency

actions may be overturned by alternate interpretations made by various courts.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

NMED will continue its current permitting process for solid waste facilities and implement its

new rules for the permitting process that include Environmental Justice concepts.

MA/csd