46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO PUBLIC WATER SYSTEMS; AMENDING THE UTILITY OPERATORS CERTIFICATION ACT; TRANSFERRING DUTIES TO THE DEPARTMENT OF ENVIRONMENT FROM THE WATER QUALITY CONTROL COMMISSION; PROVIDING FOR ADMINISTRATION OF A FUND; RAISING FEES; PROVIDING FOR GENDER NEUTRALITY; MAKING AN APPROPRIATION.

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

Section 1. Section 61-33-2 NMSA 1978 (being Laws 1992, Chapter 44, Section 2, as amended) is amended to read:

"61-33-2. DEFINITIONS.--As used in the Utility Operators Certification Act:

A. "certified operator" means a person who is certified by the commission as being qualified to operate one of the classifications of water supply systems or wastewater facilities;

[B. "certified supervisor" means a person who is certified as an operator by the commission as qualified to operate one of the classifications of water supply systems or wastewater facilities and who performs on-site coordinations, direction and inspection of the operation of a public wastewater facility or a public water supply facility;

C.] B. "commission" means

[(1)] the water quality control commission; [or

(2) the department, when used in connection with any activity or function under the Utility Operators Certification Act, the administration and enforcement of which the commission has delegated to the department;

D.] C. "department" means the department of environment;

[E.] D. "domestic liquid waste" means human excreta and water-carried waste from typical residential plumbing fixtures and activities, including waste from toilets, sinks, bath fixtures, clothes or dishwashing machines and floor drains;

[F.] E. "domestic liquid waste treatment unit" means a watertight unit designed, constructed and installed to stabilize only domestic liquid waste and to retain solids contained in such domestic liquid waste, including aerobic treatment units and septic tanks;

[G.] F. "person" means any agency, department or instrumentality of the United States and any of their officers, agents or employees, the state or any agency, institution or political subdivision thereof, any public or private corporation, individual, partnership, association or other entity, and includes any officer or governing or managing body of any political subdivision or public or private corporation;

[H.] G. "public wastewater facility" means a system of structures, equipment and processes designed to collect and treat domestic and industrial waste and dispose of the effluent, but does not include:

(1) any domestic liquid waste treatment unit; or

(2) any industrial facility subject to an industrial pretreatment program regulated by the United States environmental protection agency under the requirements of the federal Clean Water Act of 1977; and

[I.] H. "public water supply system" means:

(1) a system for the provision through pipes or other constructed conveyances to the public of water for human consumption or domestic purposes if the system:

(a) has at least fifteen service connections; or

(b) regularly serves an average of at least twenty-five individuals at least sixty days of the year; and

(2) includes any water supply source and any treatment, storage and distribution facilities under control of the operator of the system."

Section 2. Section 61-33-3 NMSA 1978 (being Laws 1973, Chapter 394, Section 3, as amended) is amended to read:

"61-33-3. ADMINISTRATION--ENFORCEMENT.--

A. The administration and enforcement of the Utility Operators Certification Act is vested in the [commission.

B. The commission may further delegate to the department the administration and enforcement of any portion of the Utility Operators Certification Act except:

(1) the adoption of regulations; and

(2) the conducting of hearings on compliance orders] department.

B. The department shall:

(1) approve and accredit schools and training programs designed to educate and qualify persons for certification in one of the classifications of public water supply system operator and public wastewater facility operator;

(2) prepare and administer written and practical examinations, based on nationally accepted standards, for certification of applicants as operators for one of the facility classifications established pursuant to Section 61-33-4 NMSA 1978;

(3) enter into agreements, contracts or cooperative arrangements with agencies of the federal, state or local governments or other organizations or individuals; and

(4) receive and accept financial and technical assistance from the federal government and other public or private agencies."

Section 3. Section 61-33-4 NMSA 1978 (being Laws 1973, Chapter 394, Section 4, as amended) is amended to read:

"61-33-4. POWERS AND DUTIES OF COMMISSION.--The commission shall:

A. adopt regulations that classify public water supply systems and public wastewater facilities into [categories] classifications for each type of utility based on:

(1) size and type of system or facility;

(2) capacity of the system or facility based on the size of the serviced area and the number and size of the users to be served;

(3) [the] type and character of the water or wastewater to be treated; and

(4) [the] physical conditions affecting the treatment plants, collection systems and distribution systems;

B. adopt regulations providing standards and criteria for the certification of plant operators based on their qualifications and their ability to [supervise or] operate public water supply systems or public wastewater facilities of the various classifications;

[C. approve and accredit schools and training programs designed to educate and qualify persons for certification in one of the classifications of public water supply system operator and public wastewater facility operator;

D. prepare and administer written and practical examinations, based on nationally accepted standards, for certification of applicants as operators for one of the facility classifications established under Subsection A of this section;

E. enter into agreements, contracts or cooperative arrangements with agencies of the federal, state or local governments or other organizations or individuals under such terms and conditions as the agency deems appropriate;

F. receive and accept financial and technical assistance from the federal government and other public or private agencies;

G.] C. appoint a seven-member board from the certified public water supply system operators and public wastewater facility operators to function with the commission to [establish qualifications of operators, classify systems] adopt regulations and advise the [administration of] department on the Utility Operators Certification Act. Two board members selected by the board shall sit as commission members on matters to which that act is applicable; [and

H.] D. adopt and file under the State Rules Act rules and regulations necessary to carry out the provisions of the Utility Operators Certification Act; and

E. adopt regulations providing criteria for identifying the minimum number of certified operators needed to operate the various classifications of a public water supply system or a public wastewater facility."

Section 4. Section 61-33-5 NMSA 1978 (being Laws 1973, Chapter 394, Section 5, as amended) is amended to read:

"61-33-5. APPLICATION REQUIREMENTS--FEES--ENDORSEMENT.--

A. Each applicant for certification as a public water supply system operator or public wastewater facility operator shall:

(1) make application on forms furnished by the [commission] department;

(2) submit evidence satisfactory to the [commission] department that the applicant has reached the age of majority; and

(3) pay in advance to the [commission] department fees set by regulation not to exceed:

(a) for examination for certification as a public water supply system operator or a public wastewater facility operator in each classification [$25.00] $200

(b) for issuance of a certificate

[10.00] 100

(c) for the annual renewal of a certificate [10.00] 200

(d) for issuance of a certificate by endorsement [25.00] 200.

B. Fees collected pursuant to Subsection A of this section shall be deposited with the state treasurer in the "public water supply system operator and public wastewater facility operator fund", hereby created. This fund shall be used solely for the purpose of [making necessary refunds. At the end of each month, the fees remaining in the fund after refunds shall be transferred to the state general fund by the state treasurer] administration and enforcement of the Utility Operators Certification Act. Funds deposited in the public water supply system operator and public wastewater facility operator fund are appropriated to the department and shall be administered by the department. Balances in the fund at the end of a fiscal year shall not revert to the general fund, but shall accrue to the credit of the fund. Earnings on the fund shall be credited to the fund.

C. The [commission] department may, in its discretion, endorse for certification without examination a public water supply system operator or a public wastewater facility operator who [meets the qualifications set forth in Paragraph (2) of Subsection A of this section] submits evidence satisfactory to the department that the applicant has reached the age of majority and holds a valid license or certification in any state, territory or foreign jurisdiction having standards equal to or exceeding those of New Mexico."

Section 5. Section 61-33-6 NMSA 1978 (being Laws 1973, Chapter 394, Section 6, as amended) is amended to read:

"61-33-6. CERTIFICATION REQUIRED.--

A. It is unlawful to operate any public water supply system or public wastewater facility unless the public water supply system is operated by [or under the supervision of] a certified public water supply system [supervisor or] operator or the public wastewater facility is operated by [or under the supervision of] a certified public wastewater facility operator [or supervisor].

B. The owner of a public water supply system or public wastewater facility shall ensure that the operation is conducted in compliance with the provisions of this section.

C. As used in this section, "operate any public water supply system or public wastewater facility" means any activity or function conducted to ensure the proper functioning of the public water supply system or public wastewater facility, including monitoring systems, running tests, filing reports, maintaining logs and decision-making."

Section 6. Section 61-33-7 NMSA 1978 (being Laws 1973, Chapter 394, Section 7, as amended) is amended to read:

"61-33-7. SUSPENSION AND REVOCATION.--The [commission] department shall, under the provisions of the Uniform Licensing Act relating to notice and hearing, suspend or revoke any certification upon the grounds that the certified operator:

A. [is guilty] committed an act of fraud or deceit in procuring [his] a certification;

B. [is guilty] committed an act of gross incompetence in the operation [or supervision of the class] of a public water supply system or public wastewater facility [that he is certified to supervise or operate];

C. was derelict in the performance of a duty as a certified [public water supply system operator or public wastewater facility] operator;

D. performed in the capacity of a higher classification of certified [public water supply system operator or public wastewater facility] operator [for a higher classification] than that in which [he] the operator is certified; or

E. is convicted of any violation of Section 61-33-8 NMSA 1978 or any state or federal water quality statutes."

Section 7. Section 61-33-8 NMSA 1978 (being Laws 1973, Chapter 394, Section 8, as amended) is amended to read:

"61-33-8. PROHIBITIONS--PENALTY.--

A. It is unlawful for any person not certified as a public water supply system operator or public wastewater facility operator to:

(1) use the title "certified operator" or words of similar import in connection with [his] the employment;

(2) [represent himself] act as a certified public water supply system operator or a certified public wastewater facility operator; or

(3) perform the duties of [a supervisor or] an operator of a public water supply system or a public wastewater facility.

B. It is unlawful for any person who operates a public water supply system or public wastewater facility to employ [a supervisor or] an operator of a public water supply system or a public wastewater facility who is not certified by the [commission] department.

C. Any violation of the provisions of this section is a misdemeanor."

Section 8. Section 61-33-9 NMSA 1978 (being Laws 1973, Chapter 394, Section 9, as amended) is amended to read:

"61-33-9. VARIANCE PROCEDURES.--

A. The [commission] department shall establish by regulation a variance procedure for public water supply system and public wastewater facility operating authorities.

B. Any variance procedure established by the [commission] department shall not allow an operating authority more than six months to obtain the service of a certified operator, except the [commission] department may give a variance not to exceed eighteen months if the operator in charge is involved in a training course that will bring [his] the operator's level of competency to the level required within the eighteen-month period."

Section 9. Section 61-33-10 NMSA 1978 (being Laws 1992, Chapter 44, Section 10) is amended to read:

"61-33-10. ENFORCEMENT--COMPLIANCE ORDERS.--

A. Whenever, on the basis of any information, the [commission] department determines that any person has violated, is violating or threatens to violate any requirement of the Utility Operators Certification Act, any regulation adopted pursuant to that act or any condition of a certification issued under that act, the [commission] department may:

(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and either requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or

(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

B. Any penalty assessed in the compliance order shall not exceed two thousand five hundred dollars ($2,500) per day for each violation of any provision of the Utility Operators Certification Act, any regulation adopted pursuant to the provisions of that act or any condition of a certification issued under that act.

C. In assessing any penalty authorized by this section, the [commission] department shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.

D. If a violator fails to take corrective actions within the time specified in a compliance order, the [commission] department may assess a civil penalty of not more than five thousand dollars ($5,000) for each day of continued noncompliance with the compliance order.

E. Any compliance order issued by the [commission] department pursuant to this section shall become final unless, no later than thirty days after the compliance order is served, any person named in the compliance order submits a written request to the [commission] department for a public hearing. Upon receiving such a request, the [commission] department shall promptly conduct a public hearing.

F. The [commission] department may appoint an independent hearing officer to preside over any public hearing held pursuant to this section. The hearing officer shall make and preserve a complete record of the proceedings and forward [his] the recommendation based upon the record to the [commission] department, which shall make the final decision.

G. In connection with any proceeding [under] pursuant to the provisions of this section, the [commission] department may:

(1) adopt rules for discovery procedures; and

(2) issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents.

H. Penalties collected pursuant to a compliance order shall be deposited in the general fund."