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F I S C A L I M P A C T R E P O R T

SPONSOR Foley

DATE TYPED 2/16/05

HB 645

SHORT TITLE Basis For Adoption Of Certain Rules

SB

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Environment Department (NMED)

SUMMARY

Synopsis of Bill

HB 645 limits the Environmental Improvement Board (EIB), the Water Quality Control Com-

mission (WQCC), and the Oil Conservation Commission (OCC) from adopting rules unless cer-

tain criteria are met and it is proven that property or pecuniary damages will be avoided or miti-

gated. Language is deleted that gives weight to the interference with health, welfare, animal and

plant life, property and the environment; social, economic and cultural value and effects; and re-

ducing or eliminating environmental degradation.

Significant Issues

The NMED reports HB 645 would give the District Court and Court of Appeals the authority to

overrule scientific decisions of the EIB, WQCC, and OCC and would be limited to considering

testimony from scientific experts as expert witnesses and providing of scientific facts. NMED is

concerned that Boards and Commissions may lose the authority to protect public heath and the

environment, and would be limited to protecting property and/or capital.

The NMED believes the consideration of human health and environmental issues should be

taken into consideration before the adoption of environmental rules. HB 645 may prevent citi-

zens from participating in the environmental rule-making process by not considering the view-

points of non-technical witnesses.

House Bill 645-- Page 2

PERFORMANCE IMPLICATIONS

The NMED is concerned EIB, WQCC, OCC and the executive agencies may not be able to ade-

quately protect public health, ground water, surface water, air quality and the environment if the

main basis for adopting rules is whether property or pecuniary damages will be avoided or miti-

gated.

FISCAL IMPLICATIONS

HB 645 will make it easier for commercial and private interests subject to environmental regula-

tions and fines to appeal by presenting scientific facts and expert witnesses to support a claim of

property and/or pecuniary damages.

Federal EPA regulations implement programs regulating air quality, underground injection of

wastes, water quality (proposed), hazardous waste, workplace safety, radiation exposure, and un-

derground storage tanks. The NMED report New Mexico needs to adopt rules as stringent as the

federal rules to be able to retain program approval from federal agencies to avoid higher fines

and permit fees.

The NMED anticipates additional staff time and resources to provide additional studies and

demonstration projects to support the adoption of rules.

ADMINISTRATIVE IMPLICATIONS

The NMED reports HB 645 may be in conflict with the federal Clean Air Act and the New Mex-

ico Air Quality Control Act which requires the board to adopt rules that are protective of air

quality, not to solely mitigate property or pecuniary damages.

TECHNICAL ISSUES

HB 645 is unclear as to the definition of a scientific expert or expert witness.

HB 645 is unclear as to the definition of a scientific fact and whether the social sciences apply.

ALTERNATIVES

An amendment stating any adoption of environment rules will take into consideration the protec-

tion of human health and the environment in addition to the avoidance of property and pecuniary

damages.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The current rulemaking procedures of the Oil and Gas Act, Water Quality Act and Environment

Improvement Act will remain.

AHO/lg