HOUSE BILL 824
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
John A. Heaton
AN ACT
RELATING TO THE ENVIRONMENT; AMENDING SECTIONS OF THE SOLID WASTE ACT TO PROVIDE FOR SEPARATE FEE SCHEDULES FOR PERMIT APPLICATION PROCESSING AND FOR PERMIT AUDITING; PROVIDING FOR REDUCED ANNUAL FEES FOR PUBLIC FACILITIES PROPORTIONAL TO RECYCLED WASTE; RECONCILING CONFLICTING AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 1991 BY REPEALING LAWS 1991, CHAPTER 185, SECTION 2; MAKING APPROPRIATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 74-9-8 NMSA 1978 (being Laws 1990, Chapter 99, Section 8, as amended by Laws 1991, Chapter 185, Section 2 and also by Laws 1991, Chapter 194, Section 3) is amended to read:
"74-9-8. BOARD ADOPTION OF INITIAL REGULATIONS.--No later than December 31, 1991, the board shall adopt regulations under the authority of this section to:
A. implement, administer and enforce a program for the cost-effective and environmentally safe siting, construction, operation, maintenance, closure and post-closure care of solid waste facilities, including financial responsibility requirements for solid waste facility owners and operators and also including requirements that assure that the relative interests of the applicant, other owners of property likely to be affected and the general public will be considered prior to the issuance of a permit for a solid waste facility;
B. define the solid wastes that are considered special wastes;
C. establish specific requirements for the detoxification and disposal of special wastes;
D. establish classifications of solid waste facilities and define what types of solid waste may be processed or disposed of in each classification;
E. establish performance standards for the construction and operation of solid waste facilities that will assure protection of ground water quality from degradation by contaminants from solid waste facilities consistent with the provisions of the Water Quality Act and the regulations and standards established under that act by the water quality control commission, provided such regulations shall not allow permitting of any active solid waste facility larger than five hundred acres;
F. establish performance standards for transformation facilities that will assure protection of the state's environment;
G. establish requirements and procedures for the granting or denial of an application to modify a solid waste facility permit under Section 74-9-25 NMSA l978;
H. establish requirements and procedures for commercial haulers to minimize littering and otherwise prevent degradation of the environment;
[I. establish an applicant fee schedule for processing permit applications that is based on costs of application review incurred by the division and also costs incurred for investigations of applicants by state departments and agencies other than the division, which regulation shall provide for the reimbursement of these costs to the division or other department or agency from the fees charged and shall also limit the fee to be not greater than ten thousand dollars ($l0,000)]
I. establish two separate regulatory fee schedules as follows:
(1) the first fee schedule shall be for processing applications for permits and permit modifications and shall be based on audited costs of application review incurred by the division and also costs incurred for investigations of applicants by state departments and agencies other than the division, which regulations shall provide for the reimbursement of these costs to the division or other departments or agencies from the fees charged and shall limit the total fee to be not greater than fifty thousand dollars ($50,000) for publicly or privately owned facilities; or
(2) the second fee schedule shall be for reimbursement of audited costs incurred annually by the division for technical and administrative oversight of permitted or registered facilities that have opted into the life of site compliance schedule pursuant to Section 74-9-24 NMSA 1978 and shall not be greater than fifty thousand dollars ($50,000) per year for publicly or privately owned facilities;
J. establish requirements and procedures for a person to obtain a variance from the application of a substantive regulation to the person if the person files a written application for a variance with the director and demonstrates to the director's satisfaction that:
(1) application of the regulation would result in an arbitrary and unreasonable taking of the applicant's property or would impose an undue economic burden upon any lawful business, occupation or activity; and
(2) granting the variance will not result in any condition injurious to human health, safety or welfare or the environment;
K. assure that no variance will be granted under the provisions of Subsection J of this section until the director has considered the relative interests of the applicant, other owners of property likely to be affected and the general public and that any variance or renewal of a variance shall be granted for time periods and under conditions consistent with reasons for the [various] variance but within the following limitations:
(1) if the variance is granted on the grounds that there are no practicable means known or available for the adequate prevention of degradation of the environment or the risk to the public health, safety or welfare, it shall continue only until the necessary means for the prevention of the degradation or risk become known and available; or
(2) if the variance is granted on the grounds that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraph (1) of this subsection, it shall not be granted for more than one year;
L. establish a list of solid wastes that shall not be transferred, disposed of or transformed in a solid waste facility and prohibit the disposal or transformation of those solid wastes in solid waste facilities;
M. establish recordkeeping procedures for solid waste transfer, landfill disposal and transformation facilities that shall include requirements for recording the type, amount and origin of solid waste transferred, disposed of or transformed at the facility and that require operators of landfill disposal, solid waste transfer and transformation facilities within the state to:
(1) maintain records in a form required by the division and file them with the division indicating the type, amount, origin and location in a landfill disposal facility of solid waste accepted by the facility;
(2) maintain copies of the records required under Paragraph (1) of this subsection after closure in a manner and for the length of time prescribed by the division; and
(3) make all required records available for inspection by the division and the general public during normal business hours; and
N. require the division to establish a solid waste facility operator certification program."
Section 2. Section 74-9-15 NMSA 1978 (being Laws 1990, Chapter 99, Section 15) is amended to read:
"74-9-15. SPECIFIC PROGRAM--STATE GOVERNMENT SOURCE REDUCTION AND RECYCLING.--
A. The division shall cooperate with the general services department in its assessment of the status of recycling efforts undertaken directly by state government for its own solid waste and its evaluation of existing programs and its development of necessary recycling programs to reduce the generation of solid waste by state government. The programs shall include recycling of office papers, cardboard, used motor oil, yard waste and other materials produced by the state for which recycling markets exist or may be developed.
B. Each state agency and the legislature shall prepare a source reduction and recycling plan addressing the requirements of Subsections C and D of this section. Each agency plan shall be submitted for approval to the general services department on or before December 31, 1991, consistent with the goals and guidelines of this section, the goals stated in Subsection J of Section [6 of the Solid Waste Act] 74-9-6 NMSA 1978 and the state plan. Agency plans shall be updated biennially to increase the amount of solid waste recycled by taking advantage of any changed circumstances. Updated plans shall be submitted to the general services department for approval prior to adoption.
C. By July 1, 1992, each state agency and the legislature shall establish and implement a source separation and collection program for recyclable materials produced as a result of agency operations, including, at a minimum, high grade paper, corrugated paper and glass. The source separation and collection program shall include, at a minimum, procedures for collecting and storing recyclable materials and contractual and other arrangements with buyers. Each agency shall appoint a recycling coordinator and shall conduct educational programs about the recycling program for its employees.
D. By July 1, 1992, each state agency shall establish and implement a source reduction program for materials used in the course of agency operations. The program shall be designed and implemented to achieve the maximum feasible reduction of solid waste generated as a result of agency operations.
E. Annual fees assessed by the division for technical and administrative oversight of publicly owned facilities pursuant to Section 74-9-8 NMSA 1978 shall be reduced proportionately by the percentage of waste generated within the responsible jurisdiction that is either recycled or composted and not disposed of or transferred as waste to publicly owned facilities."
Section 3. Section 74-9-24 NMSA 1978 (being Laws 1990, Chapter 99, Section 24, as amended) is amended to read:
"74-9-24. SOLID WASTE FACILITY PERMIT--ISSUANCE AND DENIAL--GROUNDS--NOTIFICATION OF DECISION--PERMIT RECORDING REQUIREMENT.--
A. The director, within one hundred eighty days after the application is deemed complete and after a public hearing, shall issue a permit, issue a permit with terms and conditions or deny a permit application. The director may deny a permit application on the basis of information in the application or evidence presented at the hearing, or both, if [he] the director makes a finding that granting the permit would be contradictory to or in violation of the Solid Waste Act or any regulation adopted [under it. He] pursuant to the provisions of that act. The director may also deny a permit application if the applicant fails to meet the financial responsibility requirements established by the board [under] pursuant to the provisions of Subsection A of Section 74-9-8 NMSA 1978 and Section 74-9-35 NMSA 1978.
B. The director may deny any permit application or revoke a permit if [he] the director has reasonable cause to believe that [any] a person required to be listed on the application pursuant to Section 74-9-20 NMSA 1978 has:
(1) knowingly misrepresented a material fact in application for a permit;
(2) refused to disclose or failed to disclose the information required [under] pursuant to the provisions of Section 74-9-21 NMSA 1978;
(3) been convicted of a felony or other crime involving moral turpitude within ten years immediately preceding the date of the submission of the permit application;
(4) been convicted of a felony, within ten years immediately preceding the date of the submission of the permit application, in any court for any crime defined by state or federal statutes as involving or being restraint of trade, price-fixing, bribery or fraud;
(5) exhibited a history of willful disregard for environmental laws of any state or the United States; or
(6) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.
C. In making a finding under Subsection B of this section, the director may consider aggravating and mitigating factors presented by any party at the hearing.
D. If an applicant whose permit is being considered for denial or revocation on any basis provided in this section has submitted an affirmative action plan that has been approved in writing by the director and plan approval includes a period of operation under a conditional permit or license that will allow the applicant a reasonable opportunity to affirmatively demonstrate its rehabilitation, the director may issue a conditional license for a reasonable period of time of operation. In approving an affirmative action plan intended to affirmatively demonstrate rehabilitation, the director may consider the following factors: implementation by the applicant of formal policies; training programs and management control to minimize and prevent the occurrence of future violations; installation by the applicant of internal environmental auditing programs; the discharge of individuals convicted of any crimes set forth in Subsection B of this section; and such other factors as the director may deem relevant.
E. Within sixty days of the date of the closing of the hearing on a permit application, the director shall notify the applicant by certified mail of the issuance, denial or issuance with conditions of a permit and the reasons [therefor] for it. Any person who has made a written request to the director to be notified of the action taken on the application shall be given written notice of the director's action.
F. No permit for the operation of a solid waste facility shall be valid until the permit or a notice of the permit and a legal description of the property on which the facility is located are filed and recorded in the office of the county clerk in each county in which the facility is located.
G. Except as otherwise provided by law:
(1) each permit issued for a publicly owned and publicly or privately operated new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit [or for twenty years, whichever is less. Each permit issued for a publicly owned landfill, transfer station, recycling facility or composting facility that is privately operated pursuant to a contract of no more than four years duration entered into in accordance with the state or local procurement code shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit or for twenty years, whichever is less. Each time the contract is renewed, the director shall review the contract to determine whether the term of the permit shall be governed by this paragraph or Paragraph (2) of this section] or for twenty years, whichever the applicant chooses. If the applicant opts for a life of site permit that is greater than twenty years, annual fees for audited costs incurred by the division for technical and administrative review shall be reimbursed pursuant to Section 74-9-8 NMSA 1978. Applicants for permits sought after July 1, 2009 shall indicate in their application whether they are seeking a permit term of twenty years or for the active life of the facility. Owners of facilities permitted prior to July 1, 2009 shall submit in writing to the division no later than September 30, 2009 their decision to remain in the twenty-year permit cycle or to opt into the life of site provision. Each permit shall be reviewed by the department of environment at least once every ten years. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions;
(2) each permit issued for a privately owned new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect [for ten years or for the active life of the facility, whichever is less. Each permit issued for a publicly owned landfill, transfer station, recycling facility or composting facility that is leased to a private person or that is operated by a private person pursuant to a contract of more than four years duration shall remain in effect for ten years or for the active life of the landfill or facility, whichever is less] throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit, or for twenty years, whichever the applicant chooses. If the applicant opts for a life of site permit, the annual fees for audited costs incurred by the division for technical and administrative review shall be reimbursed pursuant to Section 74-9-8 NMSA 1978. Applicants for permits sought after July 1, 2009 shall indicate in their application whether they are seeking a permit term of twenty years or for the active life of the facility. Owners of privately held facilities permitted prior to July 1, 2009 shall submit in writing to the division no later than September 30, 2009 their decision to opt into the twenty-year permit cycle or to opt into the life of site provision. If a privately owned facility opts into the twenty-year permit cycle, the twenty-year permit term shall be reduced by the number of years the facility has operated under its current permit. For privately owned facilities that opt into either the twenty-year permit term or the life of site permit term, the facility owners shall adjust financial assurance coverage to accommodate requirements pursuant to the solid waste management regulations. Each permit shall be reviewed at least every [five] ten years by the department of environment. Interested parties may petition the department for review, in addition to the [five-year] ten-year review, provided that the director [shall have] has discretion to determine whether there is good cause for such an additional review. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions; and
(3) the term of permits for facilities not specified by this subsection shall be governed by existing or amended regulations adopted by the board.
H. The director shall issue separate special waste permits for all solid waste facilities that transfer, process, transform, recycle or dispose of special waste pursuant to regulations adopted by the board."
Section 4. REPEAL.--Laws 1991, Chapter 185, Section 2 is repealed.
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