HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE SUBSTITUTE FOR

HOUSE BILL 381

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

AN ACT

RELATING TO THE ENVIRONMENT; AMENDING PROVISIONS FOR THE WASTEWATER TECHNICAL ADVISORY COMMITTEE.

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

     SECTION 1. Section 9-7A-15 NMSA 1978 (being Laws 2003, Chapter 99, Section 1) is amended to read:

     "9-7A-15. TECHNICAL ADVISORY COMMITTEE CREATED--DUTIES AND POWERS OF THE COMMITTEE.--

          A. The "wastewater technical advisory committee" is created. The committee shall consist of five members to be appointed by and to serve at the pleasure of the secretary of environment. The members shall include:

                (1) a wastewater treatment system engineer with at least ten years of experience in wastewater system design and construction;

                (2) a faculty member from a university or college located within New Mexico with a minimum of a master's degree in biological science, microbiology, soil science or engineering, and with a minimum of ten years of work or academic experience with wastewater treatment or wastewater treatment facility management;

                (3) a representative from the [New Mexico state university] water utilities technical assistance program or a member of the New Mexico water and wastewater association with at least ten years of practical experience in the operation and maintenance of wastewater treatment and disposal systems;

                (4) a class IV certified wastewater operator with at least ten years of experience; and

                (5) a public member who shall serve no more than one term and who shall be any of the following:

                     (a) a representative from the New Mexico home builders association;

                     (b) an individual currently licensed as a New Mexico real estate broker;

                     (c) a member of the New Mexico farm and livestock bureau;

                     (d) a dairy producer or a designee of the New Mexico dairy industry; or

                     (e) a member of the New Mexico rural water association.

          B. The term of appointed members shall be three years. Members shall be appointed for staggered terms beginning with the effective date of this 2011 act. No member shall serve more than two consecutive terms. Members shall serve until their successors are appointed. Vacancies occurring in the membership of an appointed member shall be filled by the secretary for the remainder of the unexpired term.

          C. The committee shall conduct [open] meetings as needed, but not less than quarterly. The meetings shall be held in compliance with the Open Meetings Act and the Uniform Trade Secrets Act.

          D. The department of environment shall provide [technical and legal assistance to the committee as needed]:

                (1) a clerk from the office of administrative hearings of the department, who shall keep a record of the meetings in the form of a recording or written transcript. The clerk shall also keep all documents and exhibits offered in the course of committee hearings to evaluate any wastewater treatment and disposal technology;

                (2) assistance to assure that the committee, in the exercise of any of its powers or duties, shall act with independent legal advice. The manner in which such advice is provided shall be determined by the committee from among one of the following:

                     (a) the office of the attorney general;

                     (b) an independent counsel hired by the board; or

                     (c) another state agency whose function is sufficiently distinct from the department to assure independent, impartial advice; and

                (3) the committee with all the laboratory test results, records of problems, notices of violation and any other relevant information in the possession of the department concerning any product being reviewed by the committee. The department shall provide this information at least fourteen days prior to the meeting at which the product will be evaluated or re-evaluated.

          E. The committee shall: 

                (1) establish procedures, practices and policies governing the committee's activities, including:

                     (a) selecting from its membership a chair and a vice chair who shall serve nonconsecutive terms of one year. The chair, or the vice chair in the absence of the chair, shall preside over the meetings and set the agenda. The chair shall report all decisions of the committee directly to the secretary within ten days of final action by the committee;

                     (b) establishing the minimum standardized criteria for submittals of documents and materials necessary for the committee to objectively evaluate wastewater treatment and disposal technologies;

                     (c) standardizing the procedures to be used in hearings for effective presentation of evidence and points of view, including those of the department on the same basis as any other person and those of members of the general public, and assuring that committee hearings are conducted in a fair and equitable manner;

                     (d) providing that any person who testifies at a hearing under oath and is subject to cross-examination on the subject matter of that person's direct testimony and matters affecting the person's credibility. Any member of the committee is entitled to conduct such cross-examination as may be required for a full and true disclosure of matters at issue in the hearing;

                     (e) establishing procedures for the recusal of any member from any action in which the member's impartiality or fairness might reasonably be questioned;

                     (f) establishing a rule that at no time, after the initiation and before the conclusion of a proceeding pursuant to this section, shall the department or any other party or interested participant, or their representatives, discuss ex parte the merits of the evaluation proceeding with any member; and

                     (g) providing in its findings the permissible uses and any conditions that apply to the use of a product;

                (2) provide standardized objective evaluation of new wastewater treatment and disposal technologies for both large- and small-flow domestic, commercial and agricultural wastewater systems and submit its findings to the secretary [for final approval by the secretary], who shall add the wastewater treatment and disposal technologies to the list of approved technologies maintained by the department, including the ground water quality bureau and the liquid waste program of the field operations division of the department of environment and their constituent agencies. The committee shall periodically reevaluate the existing technologies; and

                (3) maintain a current list of approved wastewater technologies accessible by the public on the department's internet site.

          F. No wastewater treatment and disposal technology that does not appear on the list pursuant to Paragraph (3) of Subsection E of this section may be legally sold in the state of New Mexico.

          G. The secretary may overturn or alter wastewater technical advisory committee recommendations only if the secretary finds the recommendations of the committee to be arbitrary, capricious or contrary to law.

          H. Appeals from any action governed by this section shall be by Rule 1-074 NMRA.

          [F.] I. Members of the committee shall receive reimbursement for expenses incurred in the performance of their duties pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance. Expenditures for this purpose shall be made from the budgeted funds of the department."

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