HOUSE BILL 259
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Ben Lujan
AN ACT
RELATING TO THE ENVIRONMENT; PROVIDING FOR A PRIVATE RIGHT OF ACTION TO ENFORCE CERTAIN STATUTES; ENACTING NEW SECTIONS OF THE OIL AND GAS ACT, THE ENVIRONMENTAL IMPROVEMENT ACT AND THE WATER QUALITY ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Oil and Gas Act is enacted to read:
"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--
A. Except as provided in Subsection C of this section, a person having an interest that is or may be adversely affected may commence a civil action on the person's own behalf against:
(1) any other person, including the state of New Mexico, a political subdivision thereof or any officer or agency of either, charging a violation of the Oil and Gas Act or a rule, permit or order issued pursuant to that act; or
(2) the commission or the oil conservation division of the energy, minerals and natural resources department alleging a failure to perform any nondiscretionary act or duty required by a provision of the Oil and Gas Act or a rule promulgated pursuant to that act.
B. Venue for the action shall be determined in accordance with the venue provisions of the Oil and Gas Act applicable to the specific violation alleged.
C. No action may be commenced under Subsection A of this section:
(1) unless the alleged violation or alleged failure to perform a nondiscretionary act or duty relates to a statute, rule, permit or order primarily concerned with environmental protection, including, but not limited to, statutes, rules, permits or orders concerned with:
(a) pits, closed-loop systems, below-grade tanks and sumps;
(b) plugging and abandonment of wells;
(c) remediation;
(d) produced water;
(e) waste disposal; or
(f) surface waste management facilities;
(2) unless the plaintiff has given sixty days' written notice of the violation to the commission, the division, the attorney general and any alleged violator of the Oil and Gas Act, rule, permit or order; or
(3) if the commission or division has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the Oil and Gas Act, rule, permit or order. In an administrative or court action commenced by the commission or division, a person whose interest may be adversely affected and who has provided notice pursuant to Paragraph (2) of this subsection prior to the initiation of the action may intervene as a matter of right.
D. In an action under this section, if the commission or division is not a party, it may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section in which the commission or division is not a party shall have no binding effect on the agency.
E. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the commission and the division. No stipulated judgment shall be entered in an action brought under this section if the commission or division is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the commission or division, during which time the commission or division may submit comments on the proposed stipulated judgment to the court or may intervene in the action as a matter of right.
F. In any action brought pursuant to this section, the court may:
(1) issue an injunction against violation of the Oil and Gas Act or any rule, permit or order that the court finds to have been violated;
(2) issue an order to the commission or division compelling performance of a nondiscretionary act or duty required by the Oil and Gas Act or a rule promulgated pursuant to that act;
(3) assess appropriate civil penalties, if authorized by a specific provision of the Oil and Gas Act for the violation; and
(4) award costs of litigation, including reasonable attorney and expert witness fees, to the prevailing party when the court determines the award is appropriate.
G. Except as otherwise provided in Subsection H of this section, any civil penalties assessed under Paragraph (3) of Subsection F of this section shall be deposited in the same fund in which they would be deposited if the action had been brought by the commission or division.
H. Notwithstanding the provisions of Subsection G of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the Oil and Gas Act or the rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the commission or division.
I. Nothing in this section shall restrict the right of any person or class of persons to any relief authorized by any other law."
Section 2. A new section of the Environmental Improvement Act is enacted to read:
"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--
A. Except as provided in Subsection C of this section, a person having an interest that is or may be adversely affected may commence a civil action on the person's own behalf against:
(1) any other person, including the state of New Mexico, a political subdivision thereof or any officer or agency of either, charging a violation of any statute, rule or permit the enforcement of which is delegated to the department, or any order of the board or the secretary issued pursuant to a statute or rule; or
(2) the department or the board alleging a failure to perform any nondiscretionary act or duty required by an act or rule the enforcement of which is delegated to the department or board.
B. Venue for the action shall be determined in accordance with the venue provisions of any statute applicable to the specific violation alleged.
C. No action may be commenced under Subsection A of this section:
(1) unless the plaintiff has given sixty days' written notice of the violation to the secretary, the attorney general and any alleged violator of the statute, rule, permit or order; or
(2) if the department has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the act, rule, permit or order. In an administrative or court action commenced by the department, a person whose interest may be adversely affected and who has provided notice pursuant to Paragraph (1) of this subsection prior to the initiation of the action may intervene as a matter of right.
D. In an action under this section, if the department is not a party, it may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section in which the department is not a party shall have no binding effect on the department.
E. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the secretary. No stipulated judgment shall be entered in an action brought under this section if the department is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the secretary, during which time the department may submit comments on the proposed stipulated judgment to the court or may intervene in the action as a matter of right.
F. In any action brought pursuant to this section, the court may:
(1) issue an injunction against violation of any statute, rule, permit or order that the court finds to have been violated;
(2) issue an order to the department or board compelling performance of a nondiscretionary act or duty required by an act or rule the enforcement of which is delegated to the department or board;
(3) assess appropriate civil penalties, if authorized by a specific statute for the violation; and
(4) award costs of litigation, including reasonable attorney and expert witness fees, to the prevailing party when the court determines the award is appropriate.
G. Except as otherwise provided in Subsection H of this section, any civil penalties assessed under Paragraph (3) of Subsection F of this section shall be deposited in the same fund in which they would be deposited if the action had been brought by the department.
H. Notwithstanding the provisions of Subsection G of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the act, rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the secretary.
I. In an action brought pursuant to this section to enforce a provision of the Air Quality Control Act or a rule, permit or order issued under that act, if jurisdiction to enforce the act has been assumed by a local authority and if the complaint arose within the jurisdiction of the local authority, then, notwithstanding the definitions in Section 74-1-3 NMSA 1978, as used in this section:
(1) "board" means the local board created by the local authority;
(2) "department" means the administrative agency established by the local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978; and
(3) "secretary" means the director or administrative head of the local agency.
J. Nothing in this section shall restrict the right of any person or class of persons to any relief authorized by any other law."
Section 3. A new section of the Water Quality Act is enacted to read:
"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--
A. Except as provided in Subsection C of this section, a person having an interest that is or may be adversely affected may commence a civil action on the person's own behalf against:
(1) any other person, including the state of New Mexico, a political subdivision thereof or any officer or agency of either, charging a violation of the Water Quality Act or a rule, permit or order issued pursuant to that act; or
(2) the commission or a constituent agency alleging a failure to perform any nondiscretionary act or duty required by the Water Quality Act or a rule promulgated pursuant to that act.
B. Venue for the action shall be determined in accordance with the venue provisions of the Water Quality Act applicable to the specific violation alleged.
C. No action may be commenced under Subsection A of this section:
(1) unless the plaintiff has given sixty days' written notice of the violation to the commission, the appropriate constituent agency, the attorney general and any alleged violator of the act, rule, permit or order; or
(2) if a constituent agency has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the act, rule, permit or order. In an administrative or court action commenced by a constituent agency, a person whose interest may be adversely affected and who has provided notice pursuant to Paragraph (1) of this subsection prior to the initiation of the action may intervene as a matter of right.
D. In an action under this section, if the constituent agency is not a party, it may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section in which a constituent agency is not a party shall have no binding effect on the agency.
E. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the commission and the appropriate constituent agency. No stipulated judgment shall be entered in an action brought under this section if the appropriate constituent agency is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the agency, during which time the agency may submit comments on the proposed stipulated judgment to the court or may intervene in the action as a matter of right.
F. In any action brought pursuant to this section, the court may:
(1) issue an injunction against violation of the Water Quality Act or any rule, permit or order that the court finds to have been violated;
(2) issue an order to the commission or appropriate constituent agency compelling performance of a nondiscretionary act or duty required by the Water Quality Act or a rule promulgated pursuant to that act;
(3) assess appropriate civil penalties, if authorized by a specific provision of the Water Quality Act for the violation; and
(4) award costs of litigation, including reasonable attorney and expert witness fees, to the prevailing party when the court determines the award is appropriate.
G. Except as otherwise provided in Subsection H of this section, any civil penalties assessed under Paragraph (3) of Subsection F of this section shall be deposited in the same fund in which they would be deposited if the action had been brought by the appropriate constituent agency.
H. Notwithstanding the provisions of Subsection G of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the Water Quality Act or the rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the appropriate constituent agency.
I. Nothing in this section shall restrict the right of any person or class of persons to any relief authorized by any other law."
Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.
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