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

RELATING TO THE ENVIRONMENT; PROVIDING THAT THE PROVISIONS OF THE HAZARDOUS WASTE ACT AND THE GROUND WATER PROTECTION ACT DO NOT APPLY TO CERTAIN ABOVE GROUND STORAGE TANKS; AMENDING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 74-4-3 NMSA 1978 (being Laws 1977, Chapter 313, Section 3, as amended) is amended to read:

"74-4-3. DEFINITIONS.--As used in the Hazardous Waste Act:

A. "above ground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain petroleum, including crude oil or [any] a fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute, and the volume of which is more than ninety percent above the surface of the ground. "Above ground storage tank" does not include [any] a:

(1) farm, ranch or residential tank used for storing motor fuel or heating oil for noncommercial purposes;

(2) pipeline facility, including gathering lines regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979, or that is an intrastate pipeline facility regulated under state laws comparable to either act;

(3) surface impoundment, pit, pond or lagoon;

(4) storm water or wastewater collection system;

(5) flow-through process tank;

(6) liquid trap, tank or associated gathering lines or other storage methods or devices related to oil, gas or mining exploration, production, transportation, refining, processing or storage, or to [the] oil field service industry operations;

[(7) tank associated with an emergency generator system;

(8) pipes] (7) pipe connected to [any] a tank that is described in Paragraphs (1) through [(7)] (6) of this subsection; [or

(9) tanks] (8) tank or related [pipelines] pipeline and [facilities] facility owned or used by a refinery, natural gas processing plant or pipeline company in the regular course of [their] its refining, processing or pipeline business;

(9) tank associated with a boat marina;

(10) tank associated with a railroad facility; or

(11) tank that stores nonhazardous lubricant oils;

B. "board" means the environmental improvement board;

C. "combustible liquid" means any liquid having a flash point at or above one hundred degrees Fahrenheit and below two hundred degrees Fahrenheit;

[C.] D. "corrective action" means an action taken in accordance with rules of the board to investigate, minimize, eliminate or clean up a release to protect the public health, safety and welfare or the environment;

[D.] E. "director" or "secretary" means the secretary of environment;

[E.] F. "disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of [any] a solid waste or hazardous waste into or on [any] land or water so that [such] the solid waste or hazardous waste or a constituent thereof may enter the environment or be emitted into the air or discharged into [any waters] water, including ground [waters] water;

[F.] G. "division" or "department" means the department of environment;

[G.] H. "federal agency" means [any] a department, agency or other instrumentality of the federal government [and any] or an independent agency or establishment of that government, including [any] a government corporation and the government printing office;

[H.] I. "generator" means [any] a person producing hazardous waste;

[I.] J. "hazardous agricultural waste" means hazardous waste generated as part of his licensed activity by [any] a person licensed pursuant to the Pesticide Control Act or [any] hazardous waste designated as hazardous agricultural waste by the board, but does not include animal excrement in connection with farm, ranch or feedlot operations;

[J.] K. "hazardous substance incident" means [any] an emergency incident involving a chemical or chemicals, including but not limited to transportation wrecks, accidental spills or leaks, fires or explosions, which incident creates the reasonable probability of injury to human health or property;

[K.] L. "hazardous waste" means [any] a solid waste or combination of solid wastes that because of [their] its quantity, concentration or physical, chemical or infectious characteristics may:

(1) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

(2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed. "Hazardous waste" does not include any of the following, until the board determines that they are subject to Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq.:

(a) drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil or natural gas or geothermal energy;

(b) fly ash waste;

(c) bottom ash waste;

(d) slag waste;

(e) flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels;

(f) solid waste from the extraction, beneficiation or processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; or

(g) cement kiln dust waste;

[L.] M. "manifest" means the form used for identifying the quantity, composition, origin, routing and destination of hazardous waste during transportation from point of generation to point of disposal, treatment or storage;

[M.] N. "person" means [any] an individual, trust, firm, joint stock company, federal agency, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of a state or [any] an interstate body;

[N.] O. "regulated substance" means:

(1) [any] a substance defined in Section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including [any] a substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended; and

(2) petroleum, including crude oil or [any] a fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute;

[O.] P. "solid waste" means [any] garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under Section 402 of the federal Water Pollution Control Act, as amended, 86 Stat. 880, or source, special nuclear or byproduct material as defined by the federal Atomic Energy Act of 1954, as amended, 68 Stat. 923;

[P.] Q. "storage" means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste;

[Q.] R. "storage tank" means an above ground storage tank or an underground storage tank;

[R.] S. "tank installer" means [any] an individual who installs or repairs a storage tank;

[S.] T. "transporter" means a person engaged in the movement of hazardous waste, not including movement at the site of generation, disposal, treatment or storage;

[T.] U. "treatment" means [any] a method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of [any] a hazardous waste so as to neutralize [such] the waste or so as to render [such] the waste nonhazardous, safer for transport, amenable to recovery, amenable to storage or reduced in volume. "Treatment" includes [any] an activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous;

[U.] V. "underground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain an accumulation of regulated substances and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground. "Underground storage tank" does not include [any] a:

(1) farm, ranch or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel or heating oil for noncommercial purposes;

(2) septic tank;

(3) pipeline facility, including gathering lines that are regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979, or that is an intrastate pipeline facility regulated under state laws comparable to either act;

(4) surface impoundment, pit, pond or lagoon;

(5) storm water or wastewater collection system;

(6) flow-through process tank;

(7) liquid trap, tank or associated gathering lines directly related to oil or gas production and gathering operations;

(8) storage tank situated in an underground area, such as a basement, cellar, mineworking drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the undesignated floor;

[(9) tank associated with an emergency generator system;

(10)] (9) tank exempted by rule of the board after finding that the type of tank is adequately regulated under another federal or state law; or

[(11) pipes] (10) pipe connected to [any] a tank that is described in Paragraphs (1) through [(10)] (9) of this subsection; and

[V.] W. "used oil" means [any] oil [that has been] refined from crude oil, or [any] a synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities."

Section 2. Section 74-6B-3 NMSA 1978 (being Laws 1990, Chapter 124, Section 3, as amended) is amended to read:

"74-6B-3. DEFINITIONS.--As used in the Ground Water Protection Act:

A. "above ground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain petroleum, including crude oil or [any] a fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute, and the volume of which is more than ninety percent above the surface of the ground. The term does not include [any] a:

(1) farm, ranch or residential tank used for storing motor fuel or heating oil for noncommercial purposes;

(2) pipeline facility, including gathering lines that are regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979, or that is an intrastate pipeline facility regulated under state laws comparable to either act;

(3) surface impoundment, pit, pond or lagoon;

(4) storm water or wastewater collection system;

(5) flow-through process tank;

(6) liquid trap, tank or associated gathering lines or other storage methods or devices related to oil, gas or mining exploration, production, transportation, refining, processing or storage, or [the] oil field service industry operations;

[(7) tank associated with an emergency generator system;

(8) pipes] (7) pipe connected to [any] a tank that is described in Paragraphs (1) through [(8)] (7) of this subsection; [or

(9) tanks] (8) tank or related [pipelines] pipeline and [facilities] facility owned or used by a refinery, natural gas processing plant or pipeline company in the regular course of [their] its refining, processing or pipeline business;

(9) tank associated with a boat marina;

(10) tank associated with a railroad facility; or

(11) tank that stores nonhazardous lubricant oils;

B. "board" means the environmental improvement board;

C. "combustible liquid" means a liquid having a flash point at or above one hundred degrees Fahrenheit and below two hundred degrees Fahrenheit;

[C.] D. "corrective action" means an action taken in accordance with rules of the board to investigate, minimize, eliminate or clean up a release to protect the public health, safety and welfare or the environment;

[D.] E. "department" means the department of environment;

[E.] F. "operator" means [any] a person in control of or having responsibility for the daily operation of a storage tank;

[F.] G. "owner" means:

(1) in the case of a storage tank in use or brought into use on or after November 8, 1984, a person who owns the storage tank; and

(2) in the case of a storage tank in use before November 8, 1984 but no longer in use after that date, a person who owned the tank immediately before the discontinuation of its use;

[G.] H. "person" means an individual or [any] a legal entity, including all governmental entities;

[H.] I. "regulated substance" means:

(1) a substance defined in Section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including a substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976; and

(2) petroleum, including crude oil or a fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute;

[I.] J. "release" means a spilling, leaking, emitting, discharging, escaping, leaching or disposing from a storage tank into ground water, surface water or subsurface soils in amounts exceeding twenty-five gallons;

[J.] K. "secretary" means the secretary of environment;

[K.] L. "site" means a place where there is or was at a previous time one or more storage tanks and may include areas contiguous to the actual location or previous location of the tanks;

[L.] M. "storage tank" means an above ground storage tank or an underground storage tank; and

[M.] N. "underground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain an accumulation of regulated substances and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground. The term does not include [any] a:

(1) farm, ranch or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel or heating oil for noncommercial purposes;

(2) septic tank;

(3) pipeline facility, including gathering lines regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979, or that is an intrastate pipeline facility regulated under state laws comparable to either act;

(4) surface impoundment, pit, pond or lagoon;

(5) storm water or wastewater collection system;

(6) flow-through process tank;

(7) liquid trap, tank or associated gathering lines directly related to oil or gas production and gathering operations;

(8) storage tank situated in an underground area, such as a basement, cellar, mineworking drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the undesignated floor;

[(9) tank associated with an emergency generator system;

(10)] (9) tank exempted by rule of the board after finding that the type of tank is adequately regulated under another federal or state law; or

[(11) pipes] (10) pipe connected to [any] a tank that is described in Paragraphs (1) through [(10)] (9) of this subsection."