SENATE BILL 131
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
David Ulibarri
AN ACT
RELATING TO THE ENVIRONMENT; AMENDING THE COMPOSITION OF THE WATER QUALITY CONTROL COMMISSION; REQUIRING A CONTRACT ATTORNEY TO SERVE AS A HEARING OFFICER WHEN REQUESTED; STRENGTHENING CONFLICT REQUIREMENTS; ESTABLISHING A FEE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 74-6-3 NMSA 1978 (being Laws 1967, Chapter 190, Section 3, as amended) is amended to read:
"74-6-3. WATER QUALITY CONTROL COMMISSION CREATED.--
A. There is created the "water quality control commission" consisting of:
(1) the secretary of environment or a member of the secretary's staff designated by the secretary;
(2) the secretary of health or a member of the secretary's staff designated by the secretary;
(3) the director of the department of game and fish or a member of the director's staff designated by the director;
(4) the state engineer or a member of the state engineer's staff designated by the state engineer;
(5) the chair of the oil conservation commission or a member of the chair's staff designated by the chair;
(6) the director of the state parks division of the energy, minerals and natural resources department or a member of the director's staff designated by the director;
(7) the director of the New Mexico department of agriculture or a member of the director's staff designated by the director;
(8) the chair of the soil and water conservation commission or a soil and water conservation district supervisor designated by the chair;
(9) the director of the bureau of geology and mineral resources at the New Mexico institute of mining and technology or a member of the director's staff designated by the director;
(10) a municipal or county government representative; and
(11) four representatives of the public to be appointed by the governor for terms of four years and who shall be compensated from the budgeted funds of the department of environment in accordance with the provisions of the Per Diem and Mileage Act. [At least one member] Of the members appointed by the governor, one shall be a member of a New Mexico Indian tribe or pueblo; two members shall be appointed from industries subject to the commission's regulation; and one member shall be appointed from an environmental advocacy organization.
B. Except for the two members appointed from industries pursuant to Paragraph (11) of Subsection A of this section, a member of the commission shall not:
(1) receive, or shall not have received during the previous two years, a significant portion of the member's income directly or indirectly from permit holders or applicants for a permit; or
(2) participate in the consideration of an appeal if the subject of the appeal is an application filed or a permit held by an entity that either employs the member or from which the member received more than ten percent of the member's gross personal income in either of the preceding two years.
C. A member of the commission shall not participate in the consideration of an appeal or a public hearing on a compliance order if:
(1) the constituent agency that employs that member is a party to the appeal or issued the compliance order; or
(2) the member is appointed to represent industries pursuant to Paragraph (11) of Subsection A of this section and is employed within an industry category that is the subject of the appeal or public hearing on the compliance order.
D. A member of the commission shall, upon the acceptance of the member's appointment and prior to the performance of any of the member's duties, file a statement of disclosure with the secretary of state disclosing any amount of money or other valuable consideration, and its source, the value of which is in excess of ten percent of the member's gross personal income in each of the preceding two years, that the member received directly or indirectly from permit holders or applicants for permits required under the Water Quality Act. [A member of the commission shall not participate in the consideration of an appeal if the subject of the appeal is an application filed or a permit held by an entity that either employs the commission member or from which the commission member received more than ten percent of the member's gross personal income in either of the preceding two years.
C.] E. The commission shall elect a chair and other necessary officers and shall keep a record of its proceedings.
[D.] F. A majority of the commission constitutes a quorum for the transaction of business, but no action of the commission is valid unless concurred in by [six] seven or more members present at a meeting.
[E.] G. The commission is the state water pollution control agency for this state for all purposes of the federal act and the wellhead protection and sole source aquifer programs of the federal Safe Drinking Water Act of 1974 and may take all action necessary and appropriate to secure to this state, its political subdivisions or interstate agencies the benefits of that act and those programs.
[F.] H. The commission is administratively attached, as defined in the Executive Reorganization Act, to the department of environment."
Section 2. Section 74-6-4 NMSA 1978 (being Laws 1967, Chapter 190, Section 4, as amended) is amended to read:
"74-6-4. DUTIES AND POWERS OF COMMISSION.--The commission:
A. may accept and supervise the administration of loans and grants from the federal government and from other sources, public or private, which loans and grants shall not be expended for other than the purposes for which provided;
B. shall adopt a comprehensive water quality management program and develop a continuing planning process;
C. shall not adopt or promulgate a standard or regulation that exceeds a grant of rulemaking authority listed in the statutory section of the Water Quality Act authorizing the standard or regulation;
D. shall adopt water quality standards for surface and ground waters of the state based on credible scientific data and other evidence appropriate under the Water Quality Act. The standards shall include narrative standards and as appropriate, the designated uses of the waters and the water quality criteria necessary to protect such uses. The standards shall at a minimum protect the public health or welfare, enhance the quality of water and serve the purposes of the Water Quality Act. In making standards, the commission shall give weight it deems appropriate to all facts and circumstances, including the use and value of the water for water supplies, propagation of fish and wildlife, recreational purposes and agricultural, industrial and other purposes;
E. shall adopt, promulgate and publish regulations to prevent or abate water pollution in the state or in any specific geographic area, aquifer or watershed of the state or in any part thereof, or for any class of waters, and to govern the disposal of septage and sludge and the use of sludge for various beneficial purposes. The regulations governing the disposal of septage and sludge may include the use of tracking and permitting systems or other reasonable means necessary to assure that septage and sludge are designated for disposal in, and arrive at, disposal facilities, other than facilities on the premises where the septage and sludge is generated, for which a permit or other authorization has been issued pursuant to the federal act or the Water Quality Act. Regulations may specify a standard of performance for new sources that reflects the greatest reduction in the concentration of water contaminants that the commission determines to be achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including where practicable a standard permitting no discharge of pollutants. In making regulations, the commission shall give weight it deems appropriate to all relevant facts and circumstances, including:
(1) the character and degree of injury to or interference with health, welfare, environment and property;
(2) the public interest, including the social and economic value of the sources of water contaminants;
(3) the technical practicability and economic reasonableness of reducing or eliminating water contaminants from the sources involved and previous experience with equipment and methods available to control the water contaminants involved;
(4) successive uses, including but not limited to domestic, commercial, industrial, pastoral, agricultural, wildlife and recreational uses;
(5) the feasibility of a user or a subsequent user treating the water before a subsequent use;
(6) property rights and accustomed uses; and
(7) federal water quality requirements;
F. shall assign responsibility for administering its regulations to constituent agencies so as to assure adequate coverage and prevent duplication of effort. To this end, the commission may make such classification of waters and sources of water contaminants as will facilitate the assignment of administrative responsibilities to constituent agencies. The commission shall also hear and decide disputes between constituent agencies as to jurisdiction concerning any matters within the purpose of the Water Quality Act. In assigning responsibilities to constituent agencies, the commission shall give priority to the primary interests of the constituent agencies. The department of environment shall provide technical services, including certification of permits pursuant to the federal act, and shall maintain a repository of the scientific data required by this act;
G. may enter into or authorize constituent agencies to enter into agreements with the federal government or other state governments for purposes consistent with the Water Quality Act and receive and allocate to constituent agencies funds made available to the commission;
H. may grant an individual variance from any regulation of the commission whenever it is found that compliance with the regulation will impose an unreasonable burden upon any lawful business, occupation or activity. The commission may only grant a variance conditioned upon a person effecting a particular abatement of water pollution within a reasonable period of time. Any variance shall be granted for the period of time specified by the commission. The commission shall adopt regulations specifying the procedure under which variances may be sought, which regulations shall provide for the holding of a public hearing before any variance may be granted;
I. may adopt regulations to require the filing with it or a constituent agency of proposed plans and specifications for the construction and operation of new sewer systems, treatment works or sewerage systems or extensions, modifications of or additions to new or existing sewer systems, treatment works or sewerage systems. Filing with and approval by the federal housing administration of plans for an extension to an existing or construction of a new sewerage system intended to serve a subdivision solely residential in nature shall be deemed compliance with all provisions of this subsection;
J. may adopt regulations requiring notice to it or a constituent agency of intent to introduce or allow the introduction of water contaminants into waters of the state;
K. shall specify in regulations the measures to be taken to prevent water pollution and to monitor water quality. The commission may adopt regulations for particular industries. The commission shall adopt regulations for the dairy industry and the copper industry. The commission shall consider, in addition to the factors listed in Subsection E of this section, the best available scientific information. The regulations may include variations in requirements based on site-specific factors, such as depth and distance to ground water and geological and hydrological conditions. The constituent agency shall establish an advisory committee composed of persons with knowledge and expertise particular to the industry category and other interested stakeholders to advise the constituent agency on appropriate regulations to be proposed for adoption by the commission. The regulations shall be developed and adopted in accordance with a schedule approved by the commission. The schedule shall incorporate an opportunity for public input and stakeholder negotiations;
L. may adopt regulations establishing pretreatment standards that prohibit or control the introduction into publicly owned sewerage systems of water contaminants that are not susceptible to treatment by the treatment works or that would interfere with the operation of the treatment works;
M. shall not require a permit respecting the use of water in irrigated agriculture, except in the case of the employment of a specific practice in connection with such irrigation that documentation or actual case history has shown to be hazardous to public health or the environment;
N. shall not require a permit for applying less than two hundred fifty gallons per day of private residential gray water originating from a residence for the resident's household gardening, composting or landscape irrigation if:
(1) a constructed gray water distribution system provides for overflow into the sewer system or on-site wastewater treatment and disposal system;
(2) a gray water storage tank is covered to restrict access and to eliminate habitat for mosquitos or other vectors;
(3) a gray water system is sited outside of a floodway;
(4) gray water is vertically separated at least five feet above the ground water table;
(5) gray water pressure piping is clearly identified as a nonpotable water conduit;
(6) gray water is used on the site where it is generated and does not run off the property lines;
(7) gray water is applied in a manner that minimizes the potential for contact with people or domestic pets;
(8) ponding is prohibited, application of gray water is managed to minimize standing water on the surface and to ensure that the hydraulic capacity of the soil is not exceeded;
(9) gray water is not sprayed;
(10) gray water is not discharged to a watercourse; and
(11) gray water use within municipalities or counties complies with all applicable municipal or county ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978; [and]
O. shall coordinate application procedures and
funding cycles for loans and grants from the federal
government and from other sources, public or private, with
the local government division of the department of finance
and administration pursuant to the New Mexico Community
Assistance Act; and
P. shall appoint a contract attorney to serve as a hearing officer in any administrative proceeding where the commission is authorized to appoint a hearing officer if:
(1) a party to the administrative proceeding requests the appointment of a contract attorney to serve as the hearing officer;
(2) the party requesting the appointment of the contract attorney agrees to pay a filing fee of one hundred dollars ($100) to the water quality management fund;
(3) the party requesting the appointment of the contract attorney agrees in writing to pay a contract attorney fee set by the commission and such fee shall not exceed the cost of contracting with the contract attorney appointed to serve as the hearing officer;
(4) the contract attorney is not regularly employed by a constituent agency; and
(5) the commission and party requesting the appointment of the contract attorney stipulate in writing that the contract attorney is fair and impartial and has sufficient knowledge and expertise to preside over the administrative proceeding."
Section 3. Section 74-6-9 NMSA 1978 (being Laws 1967, Chapter 190, Section 8, as amended) is amended to read:
"74-6-9. POWERS OF CONSTITUENT AGENCIES.--Each constituent agency may:
A. receive and expend funds appropriated, donated or allocated to the constituent agency for purposes consistent with the Water Quality Act;
B. develop facts and make studies and investigations and require the production of documents necessary to carry out the responsibilities assigned to the constituent agency. The result of any investigation shall be reduced to writing and a copy furnished to the commission and to the owner or occupant of the premises investigated;
C. report to the commission and to other constituent agencies water pollution conditions that are believed to require action where the circumstances are such that the responsibility appears to be outside the responsibility assigned to the agency making the report;
D. make every reasonable effort to obtain voluntary cooperation in the prevention or abatement of water pollution;
E. upon presentation of proper credentials, enter at reasonable times upon or through any premises in which a water contaminant source is located or in which are located any records required to be maintained by regulations of the federal government or the commission; provided that entry into any private residence without the permission of the owner shall be only by order of the district court for the county in which the residence is located and that, in connection with any entry provided for in this subsection, the constituent agency may:
(l) have access to and reproduce for their use any copy of the records;
(2) inspect any treatment works, monitoring equipment or methods required to be installed by regulations of the federal government or the commission; and
(3) sample any effluents, water contaminant or receiving waters;
F. on the same basis as any other person, recommend and propose regulations and standards for promulgation by the commission; and
G. on the same basis as any other person, present data, views or arguments and examine witnesses and otherwise participate at all hearings conducted by the commission or any other administrative agency with responsibility in the areas of environmental management, public health or consumer protection, but shall not be given any special status over any other party; provided that the participation by a constituent agency in a hearing shall not require the recusal or disqualification of the commissioner representing that constituent agency unless the constituent agency that employs that commissioner is a party to the appeal or issued the compliance order."
Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.
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