HOUSE BILL 755

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Benjamin H. Rodefer

AN ACT

RELATING TO MINING; IMPOSING STRICT LIABILITY ON URANIUM MINING OPERATIONS.

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

     Section 1. URANIUM MINING OPERATIONS--STRICT LIABILITY--DEFENSES--INDEMNIFICATION.--

          A. As used in this section:

                (1) "contaminant" means any substance from a uranium mining operation that could alter, if discharged or spilled, the physical, chemical, biological or radiological qualities of any part of the environment, including water. "Contaminant" does not mean source, special nuclear or by-product material as those terms are defined in the federal Atomic Energy Act of 1954;

                (2) "costs" means all costs of removal or remedial action, including oversight costs, indirect costs, legal costs and interest, incurred by the state of New Mexico because of a release or threatened release resulting in the incurring of those costs;

                (3) "director" means the director of the mining and minerals division of the energy, minerals and natural resources department;

                (4) "release" means the introduction or allowance of the introduction into the environment, including into water, either directly or indirectly, of one or more contaminants in a quantity and duration that may, with reasonable probability, injure human health, animal or plant life or property or unreasonably interfere with the public welfare or use of the property for a purpose other than a uranium mining operation;

                (5) "responsible party" means any person upon whom liability is imposed pursuant to Subsection B of this section;

                (6) "secretary" means the secretary of environment; and

                (7) "uranium mining operation" means a facility or a location where mining, milling or exploration activities were conducted during or after 1900 for the purpose of extracting, processing or exploring for radium, thorium or uranium ore.

          B. The following persons shall be strictly liable for costs:

                (1) the owner of a uranium mining operation;

                (2) the operator of a uranium mining operation;

                (3) any person having a permit issued pursuant to the New Mexico Mining Act or Water Quality Act that covers a uranium mining operation;

                (4) any person who, at the time of construction or operation of a uranium mining operation, or thereafter, owned, operated or had a permit to operate a uranium mining operation;

                (5) subject to Paragraph (2) of Subsection C of this section, any person who owned the real property upon which a uranium mining operation was conducted at the time of, or after the conduct of, a uranium mining operation;

                (6) a successor-in-interest to the uranium mining operation or the real property upon which it is or was situate; and

                (7) a successor-in-interest to any of the persons identified in Paragraphs (1) through (6) of this subsection, whether as a result of merger, assets purchase, stock transfer or any other transfer whatsoever or any series or combination of such transactions. In order for a successor-in-interest to be liable pursuant to this section, it is not necessary that it own, operate or be permitted to operate a uranium mining operation or the real property upon which the operation is or was situate.

          C. A person otherwise liable pursuant to Subsection B of this section shall not be liable if that person can establish by a preponderance of the evidence that:

                (1) the release of contaminants and the damages resulting therefrom were caused solely by an act of God; or

                (2) that person is an owner who:

                     (a) at the time that person acquired the property, after making reasonable inquiry, did not know and had no reason to know that the property had been used for a uranium mining operation;

                     (b) is a governmental entity that acquired the property by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority;

                     (c) acquired the property by inheritance or devise;

                     (d) is a surface estate owner who did not participate in the management of the uranium mining operation; or

                     (e) did not participate in the management of the uranium mining operation and: 1) whose only interest in the uranium mining operation is as a royalty interest holder by virtue of ownership and a duly executed lease; 2) holds indicia of ownership primarily to protect a security interest in the facility; or 3) foreclosed such a security interest after the occurrence of the release.

          D. Whenever, on the basis of any information, the director determines that there has been any release or the secretary determines that there has been a release from a uranium mining operation that has the potential to affect water, public health or the environment, the director or the secretary may:

                (1) issue an order to any responsible party requiring removal or remedial action, including removal or remedial action beyond a uranium mining operation's boundaries, or such other response measure as the director or the secretary deems necessary to protect human health or the environment; or

                (2) commence an action in district court for appropriate relief, including a temporary or permanent injunction.

          E. If any responsible party liable for a release or threatened release fails without sufficient cause to undertake removal or remedial action properly upon order of the director or the secretary, that person shall be liable to the state for punitive damages in an amount at least equal to but not more than three times the amount of costs incurred as a result of that person's failure to take proper action. The director or the secretary is authorized to commence a civil action against any person that fails without sufficient cause to undertake removal or remedial action properly to recover punitive damages, which damages shall be in addition to any costs imposed against that person.

          F. The court, in accordance with joint and several liability, may award costs or damages, or both.

          G. No state agency shall be liable pursuant to this section for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release by or from a uranium mining operation.

          H. No indemnification or similar agreement shall be effective to transfer, from a responsible party pursuant to this section to any other person, the liability imposed pursuant to this section. Nothing in this subsection bars any agreement to insure, hold harmless or indemnify a party to that agreement for any liability pursuant to this section.

          I. Nothing in this section bars or replaces any cause of action available to any person that existed before the enactment of this section. The causes of action established pursuant to this section are in addition to other causes of action.

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