HB0176

HOUSE BILL 176

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Brian F. Egolf

AN ACT

RELATING TO NATURAL RESOURCES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE OIL AND GAS ACT CONCERNING FINANCIAL ASSURANCE, POWERS OF THE OIL CONSERVATION COMMISSION AND THE OIL CONSERVATION DIVISION, CIVIL AND CRIMINAL PENALTIES, PERMITS FOR THE DISPOSITION OF WASTE, APPEALS AND USE OF THE OIL AND GAS RECLAMATION FUND; AMENDING SECTIONS OF THE GEOTHERMAL RESOURCES CONSERVATION ACT CONCERNING CIVIL AND CRIMINAL PENALTIES; CREATING A FUND; MAKING APPROPRIATIONS.

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

SECTION 1. Section 70-2-12 NMSA 1978 (being Laws 1978, Chapter 71, Section 1, as amended) is amended to read:

"70-2-12. ENUMERATION OF POWERS.--

A. [Included in the power given to] The [oil conservation] division [of the energy, minerals and natural resources department is the authority to] may:

(1) collect data; [to]

(2) make investigations and inspections; [to]

(3) examine properties, leases, papers, books and records; [to]

(4) examine, check, test and gauge oil and gas wells, tanks, plants, refineries and all means and modes of transportation and equipment; [to]

(5) hold hearings; [to]

(6) provide for the keeping of records and the making of reports and for the checking of the accuracy of the records and reports; [to]

(7) limit and prorate production of crude petroleum oil or natural gas or both as provided in the Oil and Gas Act; and [to]

(8) require either generally or in particular areas certificates of clearance or tenders in connection with the transportation of crude petroleum oil or natural gas or any products of either or both crude petroleum oil and products or both natural gas and products.

B. Apart from any authority, express or implied, elsewhere given to or existing in the [oil conservation] division by virtue of the Oil and Gas Act or the statutes of this state, the division [is authorized to] may make rules [regulations] and orders for the purposes and with respect to the subject matter stated in this subsection:

(1) to require dry or abandoned wells to be plugged in a way to confine the crude petroleum oil, natural gas or water in the strata in which it is found and to prevent it from escaping into other strata; the division shall require [a cash or surety bond in a sum not to exceed fifty thousand dollars ($50,000)] financial assurance as provided in Section 70-2-14 NMSA 1978, conditioned for the performance of such [regulations] rules;

(2) to prevent crude petroleum oil, natural gas or water from escaping from strata in which it is found into other strata;

(3) to require reports showing locations of all oil or gas wells and for the filing of logs and drilling records or reports;

(4) to prevent the drowning by water of any stratum or part thereof capable of producing crude petroleum oil or natural gas or both crude petroleum oil and natural gas in paying quantities and to prevent the premature and irregular encroachment of water or any other kind of water encroachment that reduces or tends to reduce the total ultimate recovery of crude petroleum oil or natural gas or both crude petroleum oil and natural gas from any pool;

(5) to prevent fires;

(6) to prevent ["blow-ups"] "blow-outs" and "caving" in the sense that the conditions indicated by such terms are generally understood in the oil and gas business;

(7) to require [wells to be drilled, operated and produced] oil and gas operations to be conducted in such manner as to prevent injury to neighboring leases or properties;

(8) to identify the ownership of oil or gas producing leases, properties, wells, tanks, refineries, pipelines, plants, structures and all transportation equipment and facilities;

(9) to require the operation of wells with efficient gas-oil ratios and to fix such ratios;

(10) to fix the spacing of wells;

(11) to determine whether a particular well or pool is a gas or oil well or a gas or oil pool, as the case may be, and from time to time to classify and reclassify wells and pools accordingly;

(12) to determine the limits of any pool producing crude petroleum oil or natural gas or both and from time to time redetermine the limits;

(13) to regulate the methods and devices employed for storage in this state of crude petroleum oil or natural gas or any product of either, including subsurface storage;

(14) to permit the injection of natural gas or of any other substance into any pool in this state for the purpose of repressuring, cycling, pressure maintenance, secondary or any other enhanced recovery operations;

(15) to regulate the disposition of water produced or used in connection with the drilling for or producing of crude petroleum oil or natural gas or both and to direct surface or subsurface disposal of the water, including disposition by use in drilling for or production of crude petroleum oil or natural gas, in road construction or maintenance or other construction, in the generation of electricity or in other industrial processes, in a manner that will afford reasonable protection against contamination of fresh water supplies designated by the state engineer;

(16) to determine the limits of any area containing commercial potash deposits and from time to time redetermine the limits;

(17) to regulate and, where necessary, prohibit drilling or producing operations for crude petroleum oil or natural gas within any area containing commercial deposits of potash where the operations would have the effect unduly to reduce the total quantity of the commercial deposits of potash that may reasonably be recovered in commercial quantities or where the operations would interfere unduly with the orderly commercial development of the potash deposits;

(18) to regulate the restoration and remediation of well sites and production facilities;

[(18)] (19) to spend the oil and gas reclamation fund and do all acts necessary and proper to plug dry [and] or abandoned oil and gas wells and to restore and remediate abandoned well sites and [associated] production facilities in accordance with the provisions of the Oil and Gas Act, the rules [and regulations] adopted under that act and the Procurement Code, including disposing of salvageable equipment and material removed from oil and gas wells being plugged by the state;

[(19)] (20) to make well price category determinations pursuant to the provisions of the federal Natural Gas Policy Act of 1978 or any successor act and, by [regulation] rule, to adopt fees for such determinations, which fees shall not exceed twenty-five dollars ($25.00) per filing. Such fees shall be credited to the account of the [oil conservation] division by the state treasurer and may be expended as authorized by the legislature;

[(20)] (21) to regulate the construction and operation of oil treating plants and to require the posting of bonds for the reclamation of treating plant sites after cessation of operations;

[(21)] (22) to regulate the disposition of nondomestic wastes resulting from the exploration, development, production or storage of crude petroleum oil or natural gas; [to protect public health and the environment; and

(22)] (23) to regulate the disposition of nondomestic wastes resulting from the oil field service industry, the transportation of crude petroleum oil or natural gas, the treatment of natural gas or the refinement of crude petroleum oil [to protect public health and the environment, including administering the Water Quality Act as provided in Subsection E of Section 74-6-4 NMSA 1978];

(24) recognizing the importance of environmental concerns in oil and gas operations, to regulate oil and gas operations pursuant to the Oil and Gas Act so as to protect public health, surface water, ground water, natural resources and the environment, including administering the Water Quality Act as provided in Subsection E of Section 74-6-4 NMSA 1978 so as to protect public health, surface water, ground water, natural resources and the environment;

(25) to require permits for activities regulated by Chapter 70 NMSA 1978, including permits for construction or operation of facilities that may discharge any water contaminant; and

(26) to establish a schedule of fees for permits issued for the disposition of nondomestic wastes."

SECTION 2. Section 70-2-14 NMSA 1978 (being Laws 1977, Chapter 237, Section 3, as amended) is amended to read:

"70-2-14. REQUIREMENT FOR FINANCIAL ASSURANCE.--

A. Each person, firm, corporation or association [who] that operates any oil, gas or service well within the state shall, as a condition precedent to drilling or producing the well, furnish financial assurance in the form of an irrevocable letter of credit or a cash or surety bond or a well-specific plugging insurance policy pursuant to the provisions of this section to the [oil conservation] division [of the energy, minerals and natural resources department] running to the benefit of the state and conditioned that the well be plugged and abandoned in compliance with the rules of the [oil conservation] division. The [oil conservation] division shall establish categories of financial assurance after notice and hearing. [Such] The categories shall include a blanket plugging financial assurance in an amount not [to exceed fifty thousand dollars ($50,000)] less than one hundred thousand dollars ($100,000), nor more than one million five hundred thousand dollars ($1,500,000), and one-well plugging financial assurance in amounts determined sufficient to reasonably pay the cost of plugging the wells covered by the financial assurance. The amount of the blanket plugging financial assurance required of any operator shall be determined by multiplying the number of wells operated by the operator on January 1 of each year that are not plugged and abandoned or covered by a one-well plugging financial assurance by five thousand dollars ($5,000), subject to the minimum and maximum limits provided in this subsection. In establishing categories of one-well financial assurance, the [oil conservation] division shall consider the depth of the well involved, the length of time since the well was produced, the cost of plugging similar wells and such other factors as the [oil conservation] division deems relevant. In addition to the blanket plugging financial assurance, the [oil conservation] division may require a one-well financial assurance on any inactive well that has been [held in a temporarily abandoned status] inactive for more than two years. All financial assurance shall remain in force until released by the [oil conservation] division. The [oil conservation] division shall release financial assurance when it is satisfied the conditions of the financial assurance have been fully performed.

B. If any of the requirements of the Oil and Gas Act or the rules [promulgated] or permits issued pursuant to that act have not been complied with, the [oil conservation] division, after notice and hearing, may order any well plugged and abandoned by the operator or surety or both in accordance with division rules. If the order is not complied with in the time period set out in the order, the financial assurance shall be forfeited.

C. When any financial assurance is forfeited pursuant to the provisions of the Oil and Gas Act or rules promulgated pursuant to that act, the director of the [oil conservation] division shall give notice to the attorney general, who shall collect the forfeiture without delay.

D. All forfeitures shall be deposited in the state treasury in the oil and gas reclamation fund.

E. When the financial assurance proves insufficient to cover the cost of plugging oil and gas wells on land other than federal land and funds must be expended from the oil and gas reclamation fund to meet the additional expenses, the [oil conservation] division is authorized to bring suit against the operator, the most recent owner of the minerals under the tract or the most recent lessee of the minerals under the tract in the district court of the county in which the well is located for indemnification for all costs incurred by the [oil conservation] division in plugging the well. All funds collected pursuant to a judgment in a suit for indemnification brought under the provisions of this section shall be deposited in the oil and gas reclamation fund.

F. An operator required to file financial assurance for a well pursuant to this section is considered to have met that requirement if the operator obtains a plugging insurance policy that includes the specific well and that:

(1) is approved by the insurance division of the public regulation commission;

(2) names the state of New Mexico as owner of the policy and contingent beneficiary;

(3) names a primary beneficiary who agrees to plug the specified wellbore;

(4) is fully prepaid and cannot be canceled or surrendered;

(5) provides that the policy continues in effect until the specified wellbore has been plugged;

(6) provides that benefits will be paid when, but not before, the specified wellbore has been plugged in accordance with rules of the [oil conservation] division in effect at the time of plugging; and

(7) provides benefits that are not less than an amount equal to the one-well financial assurance required by [oil conservation] division rules.

G. If, subsequent to an operator obtaining an insurance policy as provided in this section, the one-well financial assurance requirement applicable to the operator's well is increased, either because the well is deepened or the rules of the [oil conservation] division are amended, the operator is considered to have met the revised requirement if:

(1) the existing policy benefit equals or exceeds the revised requirement;

(2) the operator obtains an amendment increasing the policy benefit by the amount of the increase in the applicable financial assurance requirement; or

(3) the operator obtains financial assurance equal to the amount, if any, by which the revised requirement exceeds the policy benefit."

SECTION 3. Section 70-2-28 NMSA 1978 (being Laws 1935, Chapter 72, Section 19, as amended) is amended to read:

"70-2-28. ACTIONS FOR VIOLATIONS.--Whenever it [shall appear] appears that any person is violating or threatening to violate any statute of this state with respect to the conservation of oil and gas or both or any provision of [this] the Oil and Gas Act or any rule, [regulation or] order [made thereunder] or permit issued pursuant to that act, the division through the attorney general shall bring suit against [such] that person in the county of the residence of the defendant or in the county of the residence of any defendant, if there [be] is more than one defendant, or in the county where the violation is alleged to have occurred for penalties, if any are applicable, and to restrain [such] the person from continuing [such] the violation or from carrying out the threat of violation. In [such] the suit, the division may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and temporary injunctions, as the facts may warrant, including, when appropriate, an injunction restraining any person from moving or disposing of illegal oil or illegal oil product or illegal gas or illegal gas product, and any or all such commodities or funds derived from the sale thereof may be ordered to be impounded or placed under the control of an agent appointed by the court if, in the judgment of the court, such action is advisable. The remedies provided by this section are cumulative and do not limit any other rights or remedies of the division or the commission with respect to any violation of the Oil and Gas Act or of any rule, order or permit issued pursuant to that act."

SECTION 4. Section 70-2-31 NMSA 1978 (being Laws 1981, Chapter 362, Section 1) is amended to read:

"70-2-31. VIOLATIONS OF THE OIL AND GAS ACT--PENALTIES.--

A. [Any] Except as provided in Subsection B of this section, a person who [knowingly and willfully] violates any provision of the Oil and Gas Act or any provision of any rule, [or] order or permit issued pursuant to that act shall be subject to a civil penalty of not more than one thousand dollars ($1,000) for each day of violation. [For purposes of this subsection, in the case of a continuing violation, each day of violation shall constitute a separate violation. The penalties provided in this subsection]

B. If a person violates any provision of the Oil and Gas Act or any rule, order or permit issued pursuant to that act, which violation is or causes an unauthorized discharge into the environment of any contaminant, the civil penalty shall be not more than ten thousand dollars ($10,000) for each violation or ten thousand dollars ($10,000) for each day of a continuing violation.

C. The division or the commission may assess the civil penalties provided in this section after notice and an opportunity for a public hearing. In assessing the penalty, the division or the commission may consider the seriousness of the violation and any good-faith efforts to comply with the applicable requirement.

D. A penalty not paid within thirty days after the order assessing the penalty becomes final shall be recoverable by a civil suit filed by the attorney general in the name and on behalf of the commission or the division in the district court of the county in which the defendant resides or in which any defendant resides if there [be] is more than one defendant or in the district court of any county in which the violation occurred, provided that, if any final order assessing a penalty is appealed pursuant to Section 70-2-25 NMSA 1978, the commission may seek recovery of the penalty by a counterclaim in that case. The payment of [such] the penalty shall not operate to legalize any illegal oil, illegal gas or illegal product involved in the violation for which the penalty is imposed or relieve a person on whom the penalty is imposed from liability to any other person for damages arising out of [such] the violation.

[B.] E. It is unlawful, subject to a criminal penalty of a fine of not more than [five thousand dollars ($5,000)] fifteen thousand dollars ($15,000) or imprisonment for a term not exceeding three years or both such fine and imprisonment, for any person to knowingly and willfully:

(1) violate any provision of the Oil and Gas Act or any rule, [regulation or order of the commission or the division] order or permit issued pursuant to that act; [or]

(2) do any of the following for the purpose of evading or violating the Oil and Gas Act or any rule, [regulation or order of the commission or the division] order or permit issued pursuant to that act:

(a) make, or cause to be made, any false entry or statement in a form or report required by the Oil and Gas Act or by any rule, [regulation or order of the commission or division] order or permit issued pursuant to that act;

(b) make or cause to be made any false entry in any record, account or memorandum required by the Oil and Gas Act or by any rule, [regulation or order of the commission or division] order or permit issued pursuant to that act;

(d) remove from this state or destroy, mutilate, alter or falsify any such form, report, record, account or memorandum; or

(3) procure, counsel, aid or abet the commission of any act described in this subsection.

[C.] F. For the purposes of Subsection [B] E of this section, each day of violation shall constitute a separate offense.

[D.] G. Any person who knowingly and willfully procures, counsels, [aides] aids or abets the commission of any act described in Subsection A or B of this section shall be subject to the same penalties as are prescribed [therein] in those subsections.

H. Penalties assessed and collected pursuant to Subsection A, B or E of this section shall be deposited in the oil and gas reclamation fund."

SECTION 5. Section 70-2-33 NMSA 1978 (being Laws 1935, Chapter 72, Section 24, as amended) is amended to read:

"70-2-33. DEFINITIONS.--As used in the Oil and Gas Act:

A. "person" means:

(1) any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity; or

(2) the United States or any agency or instrumentality thereof or the state or any political subdivision thereof;

B. "pool" means an underground reservoir containing a common accumulation of crude petroleum oil or natural gas or both. Each zone of a general structure, which zone is completely separate from any other zone in the structure, is covered by the word pool as used in the Oil and Gas Act. Pool is synonymous with "common source of supply" and with "common reservoir";

C. "field" means the general area that is underlaid or appears to be underlaid by at least one pool and also includes the underground reservoir or reservoirs containing the crude petroleum oil or natural gas or both. The words field and pool mean the same thing when only one underground reservoir is involved; however, field, unlike pool, may relate to two or more pools;

D. "product" means any commodity or thing made or manufactured from crude petroleum oil or natural gas and all derivatives of crude petroleum oil or natural gas, including refined crude oil, crude tops, topped crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, treated crude oil, fuel oil, residuum, gas oil, naphtha, distillate, gasoline, kerosene, benzine, wash oil, waste oil, lubricating oil and blends or mixtures of crude petroleum oil or natural gas or any derivative thereof;

E. "owner" means the person who has the right to drill into and to produce from any pool and to appropriate the production either for [himself] the person or for [himself] the person and another;

F. "producer" means the owner of a well capable of producing oil or natural gas or both in paying quantities;

G. "gas transportation facility" means a pipeline in operation serving gas wells for the transportation of natural gas or some other device or equipment in like operation whereby natural gas produced from gas wells connected therewith can be transported or used for consumption;

H. "correlative rights" means the opportunity afforded, so far as it is practicable to do so, to the owner of each property in a pool to produce without waste [his] the owner's just and equitable share of the oil or gas or both in the pool, being an amount, so far as can be practicably determined and so far as can be practicably obtained without waste, substantially in the proportion that the quantity of recoverable oil or gas or both under the property bears to the total recoverable oil or gas or both in the pool and, for such purpose, to use [his] the owner's just and equitable share of the reservoir energy;

I. "potash" means the naturally occurring bedded deposits of the salts of the element potassium;

J. "casinghead gas" means any gas or vapor or both indigenous to an oil stratum and produced from such stratum with oil, including any residue gas remaining after the processing of casinghead gas to remove its liquid components; [and]

K. "produced water" means water that is an incidental byproduct from drilling for or the production of oil and gas;

L. "commission" means the oil conservation commission;

M. "division" means the oil conservation division of the energy, minerals and natural resources department;

N. "inactive well" means a well that is not being utilized for beneficial purposes such as production, injection or monitoring and that is not being drilled, completed, repaired or worked over; and

O. "oil and gas operations" means all activities involving or related to the exploration for, development of, production or storage of crude petroleum oil or natural gas, the oil field service industry, the transportation of crude petroleum oil or natural gas, the treatment of natural gas or the refinement of crude petroleum oil."

SECTION 6. Section 70-2-38 NMSA 1978 (being Laws 1977, Chapter 237, Section 5, as amended) is amended to read:

"70-2-38. OIL AND GAS RECLAMATION FUND ADMINISTERED--PLUGGING WELLS ON FEDERAL LAND--RIGHT OF INDEMNIFICATION--ANNUAL REPORT--CONTRACTORS SELLING EQUIPMENT FOR SALVAGE.--

A. The oil and gas reclamation fund shall be administered by the [oil conservation] division [of the energy, minerals and natural resources department]. Expenditures from the fund may be used by the director of the division for the purposes of:

(1) employing the necessary personnel to survey abandoned wells, well sites and associated production facilities and preparing plans for administering and performing the plugging of abandoned wells that have not been plugged or that have been improperly plugged, for plugging and replugging, abandoned wells and for the restoration and remediation of abandoned well sites and associated production facilities that have not been properly restored and remediated; [and]

(2) supporting energy education throughout the state in an amount not to exceed one hundred fifty thousand dollars ($150,000) annually and for plugging and replugging abandoned wells;

(3) purchasing computer equipment and software to support division data, electronic permitting and imaging systems that are used to track well status and other information necessary to identify potential oil and gas reclamation fund expenditures, provided that the amount of the fund used for this purpose shall not exceed two hundred fifty thousand dollars ($250,000) per year.

B. The director of the [oil conservation] division [of the energy, minerals and natural resources department], as funds become available in the oil and gas reclamation fund, shall reclaim and properly plug all abandoned wells and shall restore and remediate abandoned well sites and associated production facilities in accordance with the provisions of the Oil and Gas Act and the rules [and regulations] promulgated pursuant to that act. The division may order wells plugged and well sites and associated production facilities restored and remediated on federal lands on which there are no bonds running to the benefit of the state in the same manner and in accordance with the same procedure as with wells drilled on state and fee land, including using funds from the oil and gas reclamation fund to pay the cost of plugging, restoration or remediation. When the costs of plugging or replugging a well or restoring and remediating well sites and associated production facilities are paid from the oil and gas reclamation fund, the division is authorized to bring a suit against the operator, [or] the most recent owner of the minerals under the tract or the most recent lessee of the minerals under the tract in the district court of the county in which the well is located for indemnification for all costs incurred by the division in plugging the well or restoring and remediating the well site and associated production facilities. Any funds collected pursuant to a judgment in a suit for indemnification brought under the Oil and Gas Act shall be deposited in the oil and gas reclamation fund.

C. The director of the [oil conservation] division [of the energy, minerals and natural resources department] shall make an annual report to the secretary of energy, minerals and natural resources, the governor and the legislature on the use of the oil and gas reclamation fund.

D. Contracts for plugging, reclamation and energy education pursuant to this section shall be entered into in accordance with the provisions of the Procurement Code. A contractor employed by the oil conservation division of the energy, minerals and natural resources department to plug a well or restore or remediate a well site or associated production facility is authorized to sell the equipment and material or product that is removed from the well, site or facility and to deduct the proceeds of the sales from the costs of plugging, restoring or remediating.

E. As used in this section, "associated production facilities" means those facilities used for, intended to be used for or that have been used for the production, treatment, transportation, storage or disposal of oil, gas, brine, product or waste generated during oil and gas operations or used in the production of oil and gas if that facility is, has been or would have been subject to regulation by the oil conservation division of the energy, minerals and natural resources department or the oil conservation commission pursuant to the Oil and Gas Act or the Water Quality Act."

SECTION 7. A new section of the Oil and Gas Act is enacted to read:

"[NEW MATERIAL] OIL AND GAS FACILITIES FUND CREATED.--The "oil and gas facilities fund" is created in the state treasury. The fund is composed of all fees collected pursuant to the rules adopted under Subsection B of Section 70-2-12 NMSA 1978. Unexpended balances in the fund shall not revert at the end of a fiscal year and money in the fund is appropriated to the energy, minerals and natural resources department for the purpose of administering the rules adopted pursuant to Chapter 70 NMSA 1978. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of energy, minerals and natural resources."

SECTION 8. A new section of the Oil and Gas Act is enacted to read:

"[NEW MATERIAL] PERMITS FOR THE DISPOSITION OF NONDOMESTIC WASTES.--

A. The commission may require by rule that an operator of any facility subject to the jurisdiction of the division obtain a permit from the division for the disposition of nondomestic wastes.

B. The commission shall set by rule the dates for filing applications for the permits authorized in Subsection A of this section and shall prescribe the contents of an application.

C. The division may deny any application for a permit if it determines:

(1) the wastes would not meet all applicable state or federal rules or regulations, performance standards or limitations;

(2) any provision of the Oil and Gas Act, the Water Quality Act or any other statute, or any rule or permit issued pursuant to the Oil and Gas Act or Water Quality Act would be violated; or

(3) the disposition of waste would cause or contribute to contaminant levels in excess of any applicable state or federal standard, including any water quality standard adopted by the water quality control commission. Determination of the wastes' effect on water shall be measured at the point of discharge.

D. The commission shall adopt rules for procedures to ensure that the public and appropriate governmental agencies receive notice of each application for a permit or a material modification of a permit and shall provide an opportunity for filing of written comments on the application. If an application is protested or if the division determines that there is substantial public interest in an application, the division may hold a public hearing prior to ruling on the application.

E. The commission shall adopt rules for the operation and maintenance of those facilities regulated under Subsection B of Section 70-2-12 NMSA 1978, including requirements for continuity of operation, personnel training and financial responsibility, including financial responsibility for corrective action.

F. Permits shall be issued for fixed terms not to exceed five years, except that the term for a new permit shall commence on the date the permitted activity begins, but in no event shall the permit be effective for more than seven years from the date of issuance.

G. The division may impose such reasonable conditions upon permits as may be necessary to protect public health and the environment, including requirements that a permittee:

(1) install, use and maintain effluent monitoring devices;

(2) sample wastes and receiving waters for any known or suspected water contaminants, in accordance with methods and at locations and intervals as may be prescribed by the division;

(3) establish and maintain records of the nature and amounts of effluents and the performance of effluent control devices;

(4) provide any other information relating to the discharge or release of water contaminants; and

(5) notify the division of the introduction of new water contaminants from a new source and of a substantial change in the volume or character of water contaminants being introduced from sources in existence at the time of the issuance of the permit.

H. The issuance of a permit does not relieve a person from the responsibility to comply with all state or federal statutes, rules or regulations or state or federal water quality standards.

I. A permit may be terminated or modified by the division prior to its date of expiration for the following causes:

(1) violating a condition of the permit;

(2) obtaining a permit by misrepresentation or failure to disclose fully all required information;

(3) violating any applicable statute, rule, performance standard or water quality standard;

(4) violating applicable state or federal effluent rules or regulations; or

(5) a change in any condition that requires either a temporary or permanent reduction or elimination of the discharge of waste to ensure that any state or federal standard, including any water quality standard adopted by the water quality control commission, is not exceeded.

J. If the division denies, terminates or modifies a permit, other than as requested by the permittee, or grants a permit subject to condition, the division shall notify the applicant or permittee by certified mail of the action taken and the reasons. If the permittee files an application for review of the division's decision within thirty days of the date of the notice, the applicant shall be entitled to a hearing as provided in Section 70-2-13 NMSA 1978. The provisions of Section 70-2-23 NMSA 1978 shall not apply to any division action terminating or modifying a permit pursuant to this section."

SECTION 9. Section 71-5-20 NMSA 1978 (being Laws 1975, Chapter 272, Section 20, as amended) is amended to read:

"71-5-20. ACTIONS FOR VIOLATIONS.--Whenever it [shall appear] appears that any person is violating or threatening to violate any statute of this state with respect to the conservation of geothermal resources or any provision of the Geothermal Resources Conservation Act or any rule, [regulation or order made thereunder] order or permit issued pursuant to that act, the division through the attorney general shall bring suit against [such] the person in the county of the residence of the defendant or in the county of the residence of any defendant if there [be] is more than one defendant or in the county where the violation is alleged to have occurred for penalties, if any are applicable, and to restrain [such] the person from continuing [such] the violation or from carrying out the threat of violation. In [such] the suit, the division may obtain injunction, prohibitory and mandatory, including temporary restraining orders and temporary injunctions, as the facts may warrant, including, when appropriate, an injunction restraining any person from moving or disposing of illegal geothermal resources or illegal geothermal resources product, and any or all such commodities or funds derived from [the] their sale [thereof] may be ordered to be impounded or placed under the control of an agent appointed by the court if, in the judgment of the court, such action is advisable. Remedies provided by this section shall be cumulative and shall not limit any other rights or remedies of the division or the commission with respect to any violation of the Geothermal Resources Conservation Act or of any rule, order or permit made or issued pursuant to that act."

SECTION 10. Section 71-5-23 NMSA 1978 (being Laws 1981, Chapter 362, Section 2) is amended to read:

"71-5-23. VIOLATIONS OF THE GEOTHERMAL RESOURCES CONSERVATION ACT--PENALTIES.--

A. [Any] Except as provided in Subsection B of this section, a person who [knowingly and willfully] violates any provision of the Geothermal Resources Conservation Act or any provision of any rule, [or] order or permit issued pursuant to that act shall be subject to a civil penalty of not more than two thousand five hundred dollars ($2,500) for each day of violation. [For purposes of this subsection, in the case of a continuing violation, each day of violation shall constitute a separate violation. The penalties provided in this subsection]

B. If a person violates any provision of the Geothermal Resources Conservation Act or any rule, order or permit issued pursuant to that act, which violation is or causes an unauthorized discharge into the environment of any contaminant, the civil penalty shall be not more than ten thousand dollars ($10,000) for each violation or ten thousand dollars ($10,000) for each day of a continuing violation.

D. A penalty not paid within thirty days after the order assessing the penalty becomes final shall be recoverable by a civil suit filed by the attorney general in the name and on behalf of the commission or the division in the district court of the county in which the defendant resides or in which any defendant resides if there [be] is more than one defendant or in the district court of any county in which the violation occurred; provided that, if any final order assessing a penalty is appealed pursuant to Section 71-5-18 NMSA 1978, the commission may seek recovery of the penalty by counterclaim in that case. The payment [to] of such penalty shall not operate to legalize any illegal geothermal resources or illegal geothermal resources product involved in the violation for which the penalty is imposed or relieve a person on whom the penalty is imposed from liability to any other person for damages arising out of [such] the violation.

(1) violate any provision of the Geothermal Resources Conservation Act or any rule, [regulation or order of the commission or the division] order or permit issued pursuant to that act; [or]

(2) do any of the following for the purpose of evading or violating the Geothermal Resources Conservation Act or any rule, [regulation or order of the commission or the division] order or permit issued pursuant to that act:

(a) make, or cause to be made, any false entry or statement in a form or report required by the Geothermal Resources Conservation Act or by any rule, [regulation or order of the commission or division] order or permit issued pursuant to that act;

(b) make or cause to be made any false entry in any record, account or memorandum required by the Geothermal Resources Conservation Act or by any rule, [regulation or order of the commission or division] order or permit issued pursuant to that act;

(c) omit or cause to be omitted from any such form, report, record, account or memorandum full, true and correct entries; or

(d) remove from this state or destroy, mutilate, alter or falsify any such form, report, record, account or memorandum; or

(3) procure, counsel, aid or abet the violation of this subsection by any other person.

[C.] F. For the purposes of Subsection [B] E of this section, each day of violation shall constitute a separate offense.

[D.] G. Any person who knowingly and willfully procures, counsels, aids or abets the commission of any act described in Subsection A, [or] B or E of this section shall be subject to the same penalties as are prescribed [therein] in those subsections."

SECTION 11. REPEAL.--Section 70-2-26 NMSA 1978 (being Laws 1977, Chapter 255, Section 60, as amended) is repealed.

SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

- 31 -