SENATE BILL 179
54th legislature - STATE OF NEW MEXICO - second session, 2020
INTRODUCED BY
Elizabeth "Liz” Stefanics
AN ACT
RELATING TO DEPARTMENT OF ENVIRONMENT RULEMAKING; ENACTING A NEW SECTION OF THE STATE RULES ACT TO PROVIDE A LIMITED EXCEPTION FROM PUBLIC COMMENT PERIOD AND HEARING REQUIREMENTS FOR ADOPTION BY REFERENCE OF A RULE MANDATED BY A FEDERAL AGENCY; AMENDING RULEMAKING PROVISIONS OF THE ENVIRONMENTAL IMPROVEMENT ACT AND THE HAZARDOUS WASTE ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the State Rules Act is enacted to read:
"[NEW MATERIAL] LIMITED EXCEPTION TO PUBLIC COMMENT AND HEARING REQUIREMENTS.--Notwithstanding another provision of law, a public comment period and a public hearing are not required for prospective adoption by reference of a rule mandated by a federal agency in order for the state to maintain authorization to implement a federal program or to receive federal funding."
SECTION 2. Section 74-1-9 NMSA 1978 (being Laws 1971, Chapter 277, Section 13, as amended) is amended to read:
"74-1-9. ADOPTION OF REGULATIONS--NOTICE AND HEARING--APPEAL.--
A. Any person may recommend or propose regulations to the board for promulgation. The board shall determine whether [or not] to hold a hearing within sixty days of submission of a proposed regulation.
B. [No] A regulation shall not be adopted until after a public hearing by the board unless adoption of the regulation is a mandatory requirement to maintain state authorization to implement a federal program or to receive federal funding. As used in this section, "regulation" includes any amendment or repeal [thereof]. Hearings on regulations of nonstatewide application shall be held within [that] the area [which] that is substantially affected by the regulation. Hearings on regulations of statewide application may be held at Santa Fe or within any area of the state substantially affected by the regulation. In making its regulations, the board shall give the weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to the:
(1) character and degree of injury to or interference with health, welfare, animal and plant life, property and the environment;
(2) [the] public interest, including the social, economic and cultural value of the regulated activity and the social, economic and cultural effects of environmental degradation; and
(3) technical practicability, necessity for and economic reasonableness of reducing, eliminating or otherwise taking action with respect to environmental degradation.
C. The standards for regulations set forth in Subsection [A] B of this section do not apply to the promulgation of regulations under the Air Quality Control Act or any other act in which specific standards are set forth for the board's consideration.
D. Notice of the hearing shall be given at least sixty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The proposed language amending any existing regulation or any proposed new regulation shall be made available to the public as of the date the notice of the hearing is given. The notice shall also state where interested persons may secure copies of any proposed amendment or new regulation. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the board for advance notice of hearings.
E. At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, proposed changes to the proposed regulation, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the board.
F. The board may designate a hearing officer to take evidence in the hearing. A transcript shall be made of the entire hearing proceedings.
G. [No] A regulation or an amendment or repeal [thereof] of a regulation adopted by the board shall not become effective until thirty days after its filing under the State Rules Act.
H. Any person who is or may be affected by a regulation adopted by the board may appeal to the court of appeals for further relief. All such appeals shall be upon the transcript made at the hearing and shall be taken to the court of appeals within thirty days after filing of the regulation under the State Rules Act.
I. The procedure for perfecting an appeal to the court of appeals under this section consists of the timely filing of a notice of appeal with a copy attached to the regulation from which the appeal is taken. The appellant shall certify in [his] the notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support [his] the appeal to the court, at the expense of the appellant, including three copies [which he] that the appellant shall furnish to the board.
J. Upon appeal, the court of appeals shall set aside the regulation only if found to be:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence in the transcript; or
(3) otherwise not in accordance with law."
SECTION 3. Section 74-4-5 NMSA 1978 (being Laws 1977, Chapter 313, Section 5, as amended) is amended to read:
"74-4-5. ADOPTION OF REGULATIONS--NOTICE AND HEARING.--
A. [No] A regulation shall not be adopted, amended or repealed until after a public hearing by the board unless adoption of the regulation is a mandatory requirement to maintain state authorization to implement a federal program or to receive federal funding. Hearings on regulations shall be held in Santa Fe or in an area of the state substantially affected by the regulations. In making its regulations, the board shall give the weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to:
(1) the character and degree of injury to or interference with the environment or public health; and
(2) the technical practicability and economic reasonableness of the regulation.
B. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed regulation. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the board for advance notice of hearings.
C. At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the board.
D. The board may designate a hearing officer to take evidence in the hearing. A transcript shall be made of the entire hearing proceedings.
E. No regulation or amendment or repeal of a regulation adopted by the board shall become effective until thirty days after its filing under the State Rules Act."
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