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F I S C A L I M P A C T R E P O R T
SPONSOR SFl
DATE TYPED 3/16/05
HB
SHORT TITLE Recycling and Illegal Dumping Act
SB 142/SFlS
ANALYST Hadwiger
APPROPRIATION
(in $000s)
Appropriation Contained Estimated Additional Impact Recurring
or Non-Rec
Fund
Affected
FY05
FY06
FY05
FY06
($800.0)
Recurring
Tire Recycling Fund
$800.0
Recurring Recycling and Illegal
Dumping Fund
(Parenthesis ( ) Indicate Expenditure Decreases)
Similar to HB269.
REVENUE
Estimated Revenue
Subsequent
Years Impact
Recurring
or Non-Rec
Fund
Affected
FY05
FY06
($800.0)
($800.0)
Recurring
Tire Recycling Fund
$800.0
$800.0
Recurring
Recycling and Illegal
Dumping Fund
(Parenthesis ( ) Indicate Revenue Decreases)
SOURCES OF INFORMATION
LFC Files
Responses Received From
Office of the Attorney General (AG)
Department of Environment (DE)
Corrections Department (CD)
Department of Transportation (DOT)
Public Defender Department (PDD)
No comments were received from the Department of Finance and Administration, New Mexico
Association of Counties or New Mexico Municipal League at the time this FIR was written.
pg_0002
Senate Bill 142/SFlS/SJCS/aSJC/aSFC/SFS -- Page 2
SUMMARY
Synopsis of Senate Floor Substitute for SB142
The original bill would have enacted the Recycling and Illegal Dumping Act and repeal the Tire
Recycling Act (Sections 74-11-1 to 74-11-17 NMSA 1978). In particular, the bill would make
the following changes to existing statute:
1.
Creates the Recycling and Illegal Dumping Alliance, including one member from each
state government, local government, a solid waste authority, industry waste generator,
tribal government, nonprofit organization, recycling company, retailer, agricultural pro-
ducer, waste management company, and the public at large. The members would serve
two-year terms with no compensation from the state. The Alliance would:
a.
Develop strategies to increase recycling and decrease illegal dumping in New
Mexico.
b.
Create a state recycling plan and update the plan every three years to measure pro-
gress and modify strategies.
c.
Review and make recommendations for funding grant applications from the recy-
cling and illegal dumping fund.
2.
Prohibits storing or using in a civil engineering application, except for agricultural uses,
more than 100 scrap tires without a valid permit from the New Mexico Department of
Environment (NMED).
3.
Prohibits operating or maintaining a tire recycling facility without a valid permit, unless
the facility stores/uses tires for agricultural uses.
4.
Prohibits transport of scrap tires for hire without required registration, as well as to a
place other than a tire recycling facility, with specified exceptions.
5.
Prohibits a scrap tire generator from releasing scrap tires to a person other than a regis-
tered scrap tire hauler or registered commercial waste hauler.
6.
Prohibits open burning of scrap tires.
7.
Prohibits storage or disposal of scrap tires or tire-derived products in a manner that cre-
ates a public nuisance, promotes disease vectors, creates the potential for fire or other
health or environmental hazards.
8.
Except for agricultural uses as specified, prohibits storing scrap tires or tire-derived prod-
ucts for more than 12 months unless authorized by the NMED cabinet secretary.
9.
Prohibits scrap tire haulers from transporting scrap tires without a scrap tire manifest ap-
proved by NMED.
10.
Prohibits engaging in, maintaining or allowing illegal dumping.
11.
Allows the NMED secretary or his/her representative to:
a.
Enter a facility of a scrap tire generator, scrap tire hauler, or tire recycling facility
at any reasonable time to make a routine inspection or investigation of scrap tire
management practices based on reasonable evidence of a violation of this Act.
b.
Take and analyze samples of the facility’s waste, soil, air or water to detect con-
taminants.
c.
Conduct monitoring or testing of equipment, contents or surrounding soil, air, sur-
face water or ground water at the facility.
d.
Conduct facility inspections of scrap tire haulers at weigh stations or other sites.
12.
Sets rules regarding confidentiality of records obtained in inspections, including criminal
penalties for failure to protect the confidentiality of the records.
13.
Makes NMED responsible for implementing the Act.
pg_0003
Senate Bill 142/SFlS/SJCS/aSJC/aSFC/SFS -- Page 3
14.
Adds to the list of rules that shall be adopted by the Environmental Improvement Board
with respect to tire recycling:
a.
Record keeping requirements for tire recycling facilities, scrap tire haulers, and
scrap tire generators
b.
Financial assurance criteria for tire recycling facilities
c.
Fire rules for storage of scrap tires and tire-derived products that are consistent
with those adopted by the State Fire Marshall.
d.
Requirements and procedures for a scrap tire manifest system
e.
Criteria and procedures for making disbursements under the grant and loan pro-
grams.
f.
A fee schedule applicable to scrap tire haulers and tire recycling facilities no to
exceed the estimated cost of investigating and issuing permits and registrations
and conducting regulatory oversight
g.
A fee schedule applicable to scrap tire generators not exceeding the estimated cost
of conducting regulatory oversight.
15.
Requires scrap tire generators who transport scrap tires for specified purposes to com-
plete a scrap tire manifest and to show such manifest when a load is being transported
upon demand to an officer of the Motor Transportation Division of the Department of
Public Safety, New Mexico state police, a local law enforcement officer, or the NMED
secretary or his/her designee.
16.
Allows the NMED secretary to issue a compliance order or commence a civil action in
district court to enforce against persons who violate the Act.
17.
Increases the potential penalty assessed in a compliance order from $2,500.00 per day to
$5,000.00 per day of noncompliance with each violation.
18.
Requires reasonable specificity in compliance orders with regard to the nature of the cor-
rective action to be taken and time for compliance.
19.
Allows appeals up to 30 days after a compliance order is issued (compared to 15 days
under current statute). Provides for an independent hearing officer and public hearing to
hear appeals and provides for other aspects of the appeal process.
20.
Allows local government authorities to issue field citations for minor violations, with
civil penalties not to exceed $1,000.00 per day of violation and provides for appeal of the
field citations.
21.
Provides for judicial review of administrative actions under the Act.
22.
Establishes criminal penalties for violations of Section 4 of the Act, including:
a.
If the violation involves a quantity of scrap tires is less than 5,000 pounds, a mis-
demeanor
b.
If the violation involves a quantity of scrap tires that is 5,000 pounds or greater, a
fourth degree felony.
c.
Persons who knowingly omit substantive information or make false statements
would be guilty of a fourth degree felony.
23.
Expands eligibility for grants under this Act to include Indian nations, pueblos, tribes,
land grant communities and solid waste authorities.
24.
Sets eligible expenditures of grants under this Act to include providing funds to public
landfills to offset the cost of collecting or recycling tires.
25.
Sets eligible expenditures for loans or contracts to include development or operating costs
to establish a recycling facility, purchasing equipment, marketing, purchasing products
produced by a recycling facility, providing educational outreach, developing recycling in-
frastructure, abating illegal dumpsites, and contracting with vendors to promote recy-
cling and to abate illegal dumpsites.
pg_0004
Senate Bill 142/SFlS/SJCS/aSJC/aSFC/SFS -- Page 4
26.
Recipients of grants, contracts or loans would be restricted to persons who receive 95%
or more of recyclable materials from sources in New Mexico.
27.
Requires that at least 2/3 of budgeted grant money in each fiscal year be allocated to tire
abatement and recycling and the remaining 1/3 be allocated to abatement of illegal dump-
ing and recycling of other solid wastes.
28.
Creates a Recycling and Illegal Dumping Fund to replace the existing Tire Recycling
Fund. Expenditures from the Tire Recycling Fund were limited to abatement of illegal
dumpsites for reprocessing, transportation or recycling of all recyclable materials and
scrap tires, for providing funds to public landfills to offset the cost of collecting or recy-
cling tires, and for carrying out the provisions of the Tire Recycling Act.
29.
Specifies that regulations enacted pursuant to the Tire Recycling Act would continue in
force until amended or repealed. Repeal of that act would not affect prior violations and
permits and registrations issued pursuant to that act would remain in effect until they ex-
pire, are suspended, revoked or otherwise modified.
Significant Issues
According to NMED, SB142 supports one of three recommendations stemming from the Strate-
gic Plan to Transform the Economics of Recycling which was prepared in response to a 2004
House Joint Memorial. Significant issues include the expanded focus on all recycling, thereby
providing improved infrastructure for recycling and providing for the abatement of illegal dump-
sites in New Mexico. SB142 provides the beginning of a strategic and coordinated approach to
resource protection and conservation through improved recycling and the abatement of illegal
dumpsites.
According to the Office of the Attorney General, SB142 provides that all records obtained by
NMED pursuant to the Recycling Act are public unless deemed confidential by NMED pursuant
to the provisions of USCA Section 1905. As drafted it is unclear whether SB142 wishes to
adopt the provisions of 18 USCA Section 1905 and make it a criminal offense under state law to
disclose confidential information. As drafted 18 USCA Section 1905 would not be applicable at
this is federal law and only applies to the disclosure of confidential information by officers or
employees of the United States government.
NMED indicated that most of the changes to the original bill that are incorporated into the substi-
tute were made at the request of the agricultural industry. The change regarding legal fees was
incorporated to discourage the state from pursuing an unreasonable or frivolous lawsuit.
FISCAL IMPLICATIONS
Continuing Appropriations
This bill creates a new fund, the Recycling and Illegal Dumping Fund to replace the existing Tire
Recycling Fund, and provides for continuing appropriations. The LFC is concerned about in-
cluding continuing appropriation language in the statutory provisions for newly created funds.
Earmarking reduces the ability of the legislature to establish spending priorities.
ADMINISTRATIVE IMPLICATIONS
NMED anticipates SB142 could be administered within the existing structure and staff of the
pg_0005
Senate Bill 142/SFlS/SJCS/aSJC/aSFC/SFS -- Page 5
agency.
CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP
SB142 is similar to HB269. Both bills have been substituted and amended extensively.
ALTERNATIVES
PDD suggested the substitute could be modified to restrict the third degree penalty to violators
who dispose of more than 5000 pounds. The other possibility would be to create a petty misde-
meanor amount, i.e. 25 – 1000 pounds, a misdemeanor amount of 1001 – 5000 pounds, and a
felony amount of over 5000 pounds. Each of these could graduate to the next higher offense if
there is a subsequent conviction.
OTHER SUBSTANTIVE ISSUES
The Corrections Department does not anticipate a significant impact on the number of people
incarcerated from the penalties included in this bill.
DH/yr:lg