HOUSE BILL 494

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Georgene Louis

AN ACT

RELATING TO COMMUNITY HEALTH; CREATING THE COMMUNITY HEALTH STUDY FUND; REQUIRING THE DEPARTMENT OF HEALTH TO CONDUCT A COMPREHENSIVE HEALTH STUDY OF RESIDENTS OF LOCAL COMMUNITIES AFFECTED BY CONTAMINATION RESULTING FROM URANIUM MINING ACTIVITIES; PROVIDING FOR FINANCIAL PENALTIES; MAKING AN APPROPRIATION.

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

     SECTION 1. [NEW MATERIAL] COMMUNITY HEALTH STUDY FUND-- APPROPRIATION--HEALTH STUDY.--

          A. The "community health study fund" is created as a nonreverting fund in the state treasury. The fund consists of appropriations, fees, gifts, grants and donations. Income from investment of the fund shall be credited to the fund. The department of health shall administer the fund, and money in the fund is appropriated to the department to carry out the purposes of this section. Expenditures from the fund shall be made on warrants of the secretary of finance and administration pursuant to vouchers signed by the secretary of health or the secretary's authorized representative. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

          B. During the period beginning July 1, 2015 and extending through June 30, 2018, the secretary of health shall conduct a comprehensive study, including the opportunity for public comment, to evaluate the health of persons working or living in communities associated with current and historical uranium mining and milling activities in the state, including federally designated superfund sites related to uranium mining and milling. The study shall:

                (1) identify those communities that have suffered air, land and water contamination from uranium mining and milling, both historically and currently;

                (2) compile existing data that quantify the levels of uranium and related contamination in those communities;

                (3) compile existing health data of persons living in these communities and establish a baseline of the current health of communities in which proposed uranium mining activities may be permitted by state and federal agencies;

                (4) create a health profile for these communities that indicates levels or rates of cancer, kidney disease, birth defects, mental health problems and other maladies that health experts have associated with uranium mining and milling activities; and

                (5) propose to the appropriate state agencies and commissions conditions on permits that can mitigate the health consequences of permitted uranium mining and milling, as well as mitigation efforts directed at alleviating the continuing consequences of historical uranium mining and milling activities.

          C. The secretary of health shall report to the appropriate interim legislative committee no later than October 1 of each year regarding the total expenditures from the fund for the previous fiscal year, the purposes for which expenditures were made, an analysis of the progress of the study funded, which shall include an estimate of whether the imposition of fees pursuant to Subsection C of Section 2 of this act needs to continue beyond June 30, 2018, and proposals, if any, for legislative action in the subsequent legislative session."

     SECTION 2. [NEW MATERIAL] STRICT FINANCIAL LIABILITY ON URANIUM MINING ACTIVITIES--IMPOSING FEES.--

          A. The following persons shall be strictly liable for the cost of the community health study as set forth in Section 1 of this act:

                (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 B 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.

          B. A person otherwise liable pursuant to Subsection A of this section shall not be liable if the 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) the person is an owner who:

                     (a) at the time the 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.

          C. Whenever, on the basis of any information, the director determines that there has been a release, or the secretary determines that there has been a release, from a uranium mining operation that has affected or has the potential to affect water, public health or the environment, the director or the secretary shall issue an order to any responsible party requiring that party to pay a fee in the amount of one percent of the estimated cleanup cost, which fee shall be deposited into the community health study fund.

          D. The secretary shall adopt rules establishing an administrative process for:

                (1) identifying potentially responsible persons;

                (2) determining the fee to be imposed pursuant to Subsection C of this section; and

                (3) enforcing and collecting the fees levied pursuant to Subsection C of this section.

          E. 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.

          F. 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.

          G. 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 and soil. "Contaminant" does not mean source, special nuclear or byproduct 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 operator and 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 A 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."

     SECTION 3. SEVERABILITY.--If any part or application of the provisions of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.

     SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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