HB0050JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 50

55th legislature - STATE OF NEW MEXICO - first session, 2021

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 AIR QUALITY CONTROL ACT, THE HAZARDOUS WASTE ACT, THE SOLID WASTE ACT AND THE WATER QUALITY ACT; REPEALING SECTION 70-2-29 NMSA 1978 (BEING LAWS 1935, CHAPTER 72, SECTION 20, AS AMENDED).

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 B of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with injury, economically or otherwise, may commence a civil action on the person's own behalf against any other person who is subject to or regulated by the Oil and Gas Act or a rule, permit or order issued pursuant to that act alleging a past or present violation of the Oil and Gas Act or a rule, permit or order issued pursuant to that act related to protection of the environment or prevention of waste.

B. No action may be brought under this section:

(1) unless the plaintiff has given ninety days' written notice of the alleged violation to the commission, the division, the attorney general and any alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the proper parties; or

(2) if the commission or the division has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Oil and Gas Act or rule, permit or order issued pursuant to that act. In an action commenced by the commission or division, a person who has standing pursuant to Subsection A of this section 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.

C. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint, along with a notice of the right to intervene and a copy of any response to the notice letter, on the commission, the division and the attorney general. The commission, the division or the attorney general may intervene as a matter of right and file a notice to stay the proceedings because the division commenced an administrative enforcement action prior to the date the action was filed, or may:

(1) support the action;

(2) file a motion or otherwise support dismissal of the action because it has been fully resolved; or

(3) take such other action as is authorized by law.

D. If neither the commission, the division nor the attorney general intervenes in an action brought under this section, the plaintiff shall provide the commission, the division and the attorney general with a copy of any scheduling order, including the scheduled trial date.

E. No consent decree or stipulated judgment shall be entered in an action brought under this section unless the court has determined, after receiving, as appropriate, arguments or evidence or both, that the consent decree or stipulated judgment is fair, reasonable, in the public interest and furthers the goals of the Oil and Gas Act, and unless either:

(1) the commission or the division is a party; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the commission and the division.

F. In any action brought under this section, the court has jurisdiction to:

(1) assess a civil penalty in the amounts set forth in Subsection D of Section 70-2-31 NMSA 1978 for each violation;

(2) issue a restraining order or a temporary or permanent injunction, including, as applicable, an order requiring remediation of any contamination resulting from the violation; or

(3) grant a combination of the foregoing relief; and

(4) award reasonable costs of litigation, including expert costs and attorney fees.

G. Any action brought under this section alleging a violation of the Oil and Gas Act or the rules or requirements thereunder shall be brought in a judicial district in which the division could have brought suit for the alleged violation.

H. Penalties collected under this section shall be deposited in the state treasury to be credited to the general fund.

I. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section. The ninety-day time period from when notice is provided to the commission, division or attorney general under Paragraph (1) of Subsection B of this section shall not be counted toward the limitation period.

J. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any violation of the Oil and Gas Act or any rule or requirement thereunder or to seek any other relief."

SECTION 2. A new section of the Air Quality Control Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is subject to or regulated by the Air Quality Control Act or a rule, permit or order issued pursuant to that act alleging a past or present violation of the Air Quality Control Act or any rule, permit or order issued under that act.

B. No action may be brought under this section until ninety days after the plaintiff has given written notice of the alleged violation to the department, the attorney general and any alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or of the public or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the proper parties.

C. No action may be brought under this section if the department has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Air Quality Control Act or rule, permit or order issued under that act. In an action commenced by the department, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint, along with a notice of the right to intervene and a copy of any response to the notice letter, on the department and the attorney general. The department or the attorney general may intervene as a matter of right and file a notice to stay the proceedings because the department commenced an administrative enforcement action prior to the date the action was filed, or may:

(1) support the action;

(2) file a motion or otherwise support dismissal of the action because it has been fully resolved; or

(3) take such other action as is authorized by law.

E. If neither the department nor the attorney general intervenes in an action brought under this section, the plaintiff shall provide the department and the attorney general with a copy of any scheduling order, including the scheduled trial date.

F. No consent decree or stipulated judgment shall be entered in an action brought under this section unless the court has determined, after receiving, as appropriate, arguments or evidence or both, that the consent decree or stipulated judgment is fair, reasonable, in the public interest and furthers the goals of the Air Quality Control Act, and unless either:

(1) the department is a party; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department, and the department has had at least forty-five days after receipt of the proposed consent decree or judgment but prior to entry of the decree or judgment to prepare and submit arguments or evidence or both on the proposed decree or judgment to the court.

G. In any action brought under this section, the court has jurisdiction to:

(1) assess a civil penalty in the amount set forth in Subsection A of Section 74-2-12.1 NMSA 1978 for each violation;

(2) issue a restraining order or a temporary or permanent injunction, including, as applicable, an order requiring remediation of any contamination resulting from the violation; or

(3) grant a combination of the foregoing relief; and

(4) award reasonable costs of litigation, including expert costs and attorney fees.

H. Penalties collected under this section shall be deposited in:

(1) the municipal or county general fund if the source is subject to the jurisdiction of a local authority; or

(2) the state treasury general fund for all other sources.

I. In any action brought under this section, if jurisdiction to enforce the Air Quality Control Act has been assumed by a local authority and if the complaint arose within the jurisdiction of the local authority, notwithstanding the definitions in Section 74-2-2 NMSA 1978, the following definitions shall apply:

(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. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section. The ninety-day time period from when notice is provided to the department and attorney general under Subsection B of this section shall not be counted toward the limitation period.

K. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any violation of the Air Quality Control Act or any rule or requirement thereunder or to seek any other relief."

SECTION 3. A new section of the Hazardous Waste Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is subject to or regulated by the Hazardous Waste Act or a rule, permit or order issued pursuant to that act alleging a past or present violation of the Hazardous Waste Act or any rule, permit or order issued under that act.

B. No action may be brought under this section until ninety days after the plaintiff has given written notice of the alleged violation to the department, the attorney general and any alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the proper parties.

C. No action may be brought under this section if the department has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Hazardous Waste Act or rule, permit or order issued under that act. In an action commenced by the department, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the action may intervene as a matter of right.

(1) support the action;

(2) file a motion or otherwise support dismissal of the action because it has been fully resolved; or

(3) take such other action as is authorized by law.

F. No consent decree or stipulated judgment may be entered in an action brought under this section unless the court has determined, after receiving, as appropriate, arguments or evidence or both, that the consent decree or stipulated judgment is fair, reasonable, in the public interest and furthers the goals of the Hazardous Waste Act, and unless either:

(1) the department is a party; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department, and the department has had at least forty-five days after receipt but prior to entry of the decree or judgment to prepare and submit arguments or evidence or both on the proposed decree or judgment to the court.

G. In any action brought under this section, the court has jurisdiction to:

(1) assess a civil penalty in the amount set forth in Section 74-4-12 NMSA 1978 for each violation;

(2) issue a restraining order or a temporary or permanent injunction, including, as applicable, an order requiring remediation of any contamination resulting from the violation; or

(3) grant a combination of the foregoing relief; and

(4) award reasonable costs of litigation, including expert costs and attorney fees.

H. Penalties collected under this section shall be deposited in the state treasury to be credited to the hazardous waste emergency fund.

I. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section. The ninety-day time period from when notice is provided to the department and attorney general under Subsection B of this section shall not be counted toward the limitation period.

J. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any violation of the Hazardous Waste Act or any rule or requirement thereunder or to seek any other relief."

SECTION 4. A new section of the Solid Waste Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is subject to or regulated by the Solid Waste Act or a rule, permit or order issued pursuant to that act alleging a past or present violation of the Solid Waste Act or any rule, permit or order issued under that act.

B. No action may be brought under this section until ninety days after the plaintiff has given written notice of the alleged violation to the department of environment, the attorney general and any alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the proper parties.

C. No action may be brought under this section if the department of environment has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Solid Waste Act or rule, permit or order adopted under that act. In an action commenced by the department of environment, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint, along with a notice of the right to intervene and a copy of any response to the notice letter, on the department of environment and the attorney general. The department of environment or the attorney general may intervene as a matter of right and file a notice to stay the proceedings because the department of environment commenced an administrative enforcement action prior to the date the action was filed, or may:

(1) support the action;

(2) file a motion or otherwise support dismissal of the action because it has been fully resolved; or

(3) take such other action as is authorized by law.

E. If neither the department of environment nor the attorney general intervenes in an action brought under this section, the plaintiff shall provide the department and the attorney general with a copy of any scheduling order, including the scheduled trial date.

(1) the department of environment is a party; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the department of environment, and the department has had at least forty-five days after receipt but prior to entry of the decree or judgment to prepare and submit arguments or evidence or both on the proposed decree or judgment to the court.

G. In any action brought under this section, the court has jurisdiction to:

(1) assess a civil penalty in the amount set forth in Section 74-9-38 NMSA 1978 for each violation;

(2) issue a restraining order or a temporary or permanent injunction, including, as applicable, an order requiring remediation of any contamination resulting from the violation; or

(3) grant a combination of the foregoing relief; and

(4) award reasonable costs of litigation, including expert costs and attorney fees.

H. Penalties collected under this section shall be deposited in the state treasury to be credited to the solid waste facility grant fund.

I. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section. The ninety-day time period from when notice is provided to the department of environment and attorney general under Subsection B of this section shall not be counted toward the limitation period.

J. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any violation of the Solid Waste Act or any rule or requirement thereunder or to seek any other relief."

SECTION 5. A new section of the Water Quality Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsections B and C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with such injury, may bring a civil action on the person's own behalf against any other person who is subject to or regulated by the Water Quality Act or a rule, permit or order issued pursuant to that act alleging a past or present violation of the Water Quality Act or a rule, permit or order issued under that act.

B. No action may be brought under this section until ninety days after the plaintiff has given written notice of the alleged violation to the constituent agency, the attorney general and any alleged violator. However, when the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notice is given to the proper parties.

C. No action may be brought under this section if the constituent agency has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the Water Quality Act or rule, permit or order issued under that act. In an action commenced by a constituent agency, a person who has standing under Subsection A of this section and who has provided notice under Subsection B of this section prior to the initiation of the action may intervene as a matter of right.

D. Whenever an action is brought under this section, the plaintiff shall serve a copy of the complaint, along with a notice of the right to intervene and a copy of any response to the notice letter, on the appropriate constituent agency and the attorney general. The constituent agency or the attorney general may intervene as a matter of right and file a notice to stay the proceedings because the constituent agency commenced an administrative enforcement action prior to the date the action was filed, or may:

(1) support the action;

(2) seek a stay of the proceedings because the department commenced an administrative enforcement action prior to the date the action was filed;

(3) file a motion or otherwise support dismissal of the action because it has been fully resolved; or

(4) take such other action as is authorized by law.

E. If neither the constituent agency nor the attorney general intervenes in an action brought under this section, the plaintiff shall provide the constituent agency and the attorney general with a copy of any scheduling order, including the scheduled trial date.

(1) the appropriate constituent agency is a party; or

(2) the plaintiff has provided a copy of the proposed consent decree or stipulated judgment to the appropriate constituent agency, and the constituent agency has had at least forty-five days after receipt but prior to entry of the decree or judgment to prepare and submit arguments or evidence or both on the proposed decree or judgment to the court.

G. In any action brought under this section, the court has jurisdiction to:

(1) assess a civil penalty in the amounts set forth in Section 74-6-10.1 NMSA 1978 for each violation;

(2) issue a restraining order or a temporary or permanent injunction, including, as applicable, an order requiring remediation of any contamination resulting from the violation; or

(3) grant a combination of the foregoing relief; and

(4) award reasonable costs of litigation, including expert costs and attorney fees.

H. Penalties collected under this section shall be deposited in the state treasury to be credited to the water quality management fund.

I. The limitations period in Section 37-1-8 NMSA 1978 for injuries to the person shall apply to all actions brought under this section. The ninety-day time period from when notice is provided to the constituent agency and attorney general under Subsection B of this section shall not be counted toward the limitation period.

J. Nothing in this section shall restrict any right that any person or class of persons may have under any statute or common law to seek enforcement of any violation of the Water Quality Act or any rule or requirement thereunder or to seek any other relief."

SECTION 6. REPEAL.--Section 70-2-29 NMSA 1978 (being Laws 1935, Chapter 72, Section 20, as amended) is repealed.

SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

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