SB0249

SENATE BILL 249

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

INTRODUCED BY

Phil A. Griego

AN ACT

RELATING TO THE ENVIRONMENT; AMENDING AND REPEALING SECTIONS OF THE WATER QUALITY ACT TO MOVE RULEMAKING AUTHORITY TO THE SECRETARY OF ENVIRONMENT AND TO STREAMLINE ADMINISTRATIVE PROCEDURES.

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

SECTION 1. Section 74-6-2 NMSA 1978 (being Laws 1967, Chapter 190, Section 2, as amended) is amended to read:

"74-6-2. DEFINITIONS.--As used in the Water Quality Act:

A. "constituent agency" means, as the context may require, any or all of the following agencies of the state:

(1) the department of environment;

(2) the office of the state engineer;

(3) the interstate stream commission;

(4) the department of game and fish;

(5) the oil conservation commission;

(6) the state parks division of the energy, minerals and natural resources department;

(7) the mining and minerals division of the energy, minerals and natural resources department;

(8) the New Mexico department of agriculture;

(9) the soil and water conservation commission; and

(10) the bureau of geology and mineral resources of the New Mexico institute of mining and technology; B. "federal act" means the Federal Water Pollution Control Act, its subsequent amendment and its successor provisions;

[A.] C. "gray water" means untreated household wastewater that has not come in contact with toilet waste and includes wastewater from bathtubs, showers, washbasins, clothes washing machines and laundry tubs, but does not include wastewater from kitchen sinks or dishwashers or laundry water from the washing of material soiled with human excreta, such as diapers;

D. "new source" means:

(1) any source, the construction of which is commenced after the publication of proposed rules prescribing a standard of performance applicable to the source; or

(2) any existing source when modified to treat substantial additional volumes or when there is a substantial change in the character of water contaminants treated;

E. "person" means an individual or any other entity, including partnerships, corporations, associations, responsible business or association agents or officers, the state or a political subdivision of the state or any agency, department or instrumentality of the United States and any of its officers, agents or employees;

F. "secretary" means the secretary of environment;

G. "septage" means the residual wastes and water periodically pumped from a liquid waste treatment unit or from a holding tank for maintenance or disposal purposes;

H. "sewer system" means pipelines, conduits, pumping stations, force mains or any other structures, devices, appurtenances or facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal;

I. "sewerage system" means a system for disposing of wastes, either by surface or underground methods, and includes sewer systems, treatment works, disposal wells and other systems;

J. "sludge" means solid, semisolid or liquid waste generated from a municipal, commercial or industrial wastewater treatment plant, water supply treatment plant or air pollution control facility that is associated with the treatment of these wastes. "Sludge" does not mean treated effluent from a wastewater treatment plant;

K. "source" means a building, structure, facility or installation from which there is or may be a discharge of water contaminants directly or indirectly into water;

L. "standards of performance" means any standard, effluent limitation or effluent standard adopted pursuant to the federal act or the Water Quality Act;

M. "substantial adverse environmental impact" means that an act or omission of the violator causes harm or damage:

(1) to human beings; or

(2) that amounts to more than ten thousand dollars ($10,000) in damage or mitigation costs to flora, including agriculture crops; fish or other aquatic life; waterfowl or other birds; livestock or wildlife or their habitats; ground water or surface water; or the lands of the state;

N. "treatment works" means any plant or other works used for the purpose of treating, stabilizing or holding wastes;

O. "wastes" means sewage, industrial wastes or any other liquid, gaseous or solid substance that may pollute any waters of the state;

P. "water" means all water, including water situated wholly or partly within or bordering upon the state, whether surface or subsurface, public or private, except for private waters that do not combine with other surface or subsurface water;

[B.] Q. "water contaminant" means any substance that could alter, if discharged or spilled, the physical, chemical, biological or radiological qualities of water. "Water contaminant" does not mean source, special nuclear or byproduct material as defined by the federal Atomic Energy Act of 1954; and

[C.] R. "water pollution" means introducing or permitting the introduction into water, either directly or indirectly, of one or more water contaminants in such quantity and of such duration as may with reasonable probability injure human health, animal or plant life or property, or to unreasonably interfere with the public welfare or the use of property.

[D. "wastes" means sewage, industrial wastes or any other liquid, gaseous or solid substance that may pollute any waters of the state;

E. "sewer system" means pipelines, conduits, pumping stations, force mains or any other structures, devices, appurtenances or facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal;

F. "treatment works" means any plant or other works used for the purpose of treating, stabilizing or holding wastes;

G. "sewerage system" means a system for disposing of wastes, either by surface or underground methods, and includes sewer systems, treatment works, disposal wells and other systems;

H. "water" means all water, including water situated wholly or partly within or bordering upon the state, whether surface or subsurface, public or private, except private waters that do not combine with other surface or subsurface water;

I. "person" means an individual or any other entity, including partnerships, corporations, associations, responsible business or association agents or officers, the state or a political subdivision of the state or any agency, department or instrumentality of the United States and any of its officers, agents or employees;

J. "commission" means the water quality control commission;

K. "constituent agency" means, as the context may require, any or all of the following agencies of the state:

(1) the department of environment;

(2) the state engineer and the interstate stream commission;

(3) the department of game and fish;

(4) the oil conservation commission;

(5) the state parks division of the energy, minerals and natural resources department;

(6) the New Mexico department of agriculture;

(7) the soil and water conservation commission; and

(8) the bureau of geology and mineral resources at the New Mexico institute of mining and technology;

L. "new source" means:

(1) any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance applicable to the source; or

(2) any existing source when modified to treat substantial additional volumes or when there is a substantial change in the character of water contaminants treated;

M. "source" means a building, structure, facility or installation from which there is or may be a discharge of water contaminants directly or indirectly into water;

N. "septage" means the residual wastes and water periodically pumped from a liquid waste treatment unit or from a holding tank for maintenance or disposal purposes;

O. "sludge" means solid, semi-solid or liquid waste generated from a municipal, commercial or industrial wastewater treatment plant, water supply treatment plant or air pollution control facility that is associated with the treatment of these wastes. "Sludge" does not mean treated effluent from a wastewater treatment plant;

P. "substantial adverse environmental impact" means that an act or omission of the violator causes harm or damage:

(1) to human beings; or

(2) that amounts to more than ten thousand dollars ($10,000) damage or mitigation costs to flora, including agriculture crops; fish or other aquatic life; waterfowl or other birds; livestock or wildlife or damage to their habitats; ground water or surface water; or the lands of the state;

Q. "federal act" means the Federal Water Pollution Control Act, its subsequent amendment and successor provisions; and

R. "standards of performance" means any standard, effluent limitation or effluent standard adopted pursuant to the federal act or the Water Quality Act.]"

SECTION 2. Section 74-6-4 NMSA 1978 (being Laws 1967, Chapter 190, Section 4, as amended) is amended to read:

"74-6-4. DUTIES AND POWERS OF [COMMISSION] SECRETARY AND CONSTITUENT AGENCIES.--

A. The [commission: A.] secretary:

(1) is responsible for water pollution control in the state and for all purposes of the federal act and the wellhead protection and sole source aquifer programs of the federal Safe Drinking Water Act and may take all action necessary and appropriate to secure to the state, its political subdivisions or interstate agencies the benefits of that act and those programs, except for programs administered by constituent agencies as provided in Subsection B of this section;

(2) may accept and supervise the administration of loans and grants from the federal government and from other sources, public or private, which loans and grants shall not be expended for other than the purposes for which provided;

[B. shall adopt a comprehensive water quality management program and develop a continuing planning process;

C.] (3) shall not adopt or promulgate a [standard or regulation] rule that exceeds a grant of rulemaking authority listed in the statutory section of the Water Quality Act authorizing the [standard or regulation] rule;

[D.] (4) shall adopt rules:

(a) establishing a comprehensive water quality management program and continuing planning process;

(b) setting forth water quality standards for surface and ground waters of the state. In making standards, the secretary shall give weight that the secretary deems appropriate to all facts and circumstances, including the use and value of the water for water supplies, propagation of fish and wildlife, recreational purposes and agricultural, industrial and other purposes. These standards shall: 1) be based on credible scientific data and other evidence appropriate under the Water Quality Act [The standards shall]; 2) include narrative standards and, as appropriate, the designated uses of the waters and the water quality criteria necessary to protect such uses; [The standards shall] and 3) at a minimum, protect the public health or welfare, enhance the quality of water and serve the purposes of the Water Quality Act; [In making standards, the commission shall give weight it deems appropriate to all facts and circumstances, including the use and value of the water for water supplies, propagation of fish and wildlife, recreational purposes and agricultural, industrial and other purposes;

E. shall adopt, promulgate and publish regulations]

(c) to prevent or abate water pollution in the state or in any specific geographic area, aquifer or watershed of the state or in any part thereof, or for any class of waters, and to govern the disposal of septage and sludge and the use of sludge for various beneficial purposes. The [regulations] rules governing the disposal of septage and sludge may include the use of tracking and permitting systems or other reasonable means necessary to assure that septage and sludge are designated for disposal in, and arrive at, disposal facilities, other than facilities on the premises where the septage and sludge is generated, for which a permit or other authorization has been issued pursuant to the federal act or the Water Quality Act. [Regulations] Rules may specify a standard of performance for new sources that reflects the greatest reduction in the concentration of water contaminants that the commission determines to be achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including where practicable a standard permitting no discharge of pollutants. In making [regulations] rules, the [commission] secretary shall give weight [it] that the secretary deems appropriate to all relevant facts and circumstances, including: [(1)] 1) the character and degree of injury to or interference with health, welfare, environment and property; [(2)] 2) the public interest, including the social and economic value of the sources of water contaminants; [(3)] 3) the technical practicability and economic reasonableness of reducing or eliminating water contaminants from the sources involved and previous experience with equipment and methods available to control the water contaminants involved; [(4)] 4) successive uses, including but not limited to domestic, commercial, industrial, pastoral, agricultural, wildlife and recreational uses; [(5)] 5) the feasibility of a user or a subsequent user treating the water before a subsequent use; [(6)] 6) property rights and accustomed uses; and [(7)] 7) federal water quality requirements;

[F. shall assign responsibility for administering its regulations to constituent agencies so as to assure adequate coverage and prevent duplication of effort. To this end, the commission may make such classification of waters and sources of water contaminants as will facilitate the assignment of administrative responsibilities to constituent agencies. The commission shall also hear and decide disputes between constituent agencies as to jurisdiction concerning any matters within the purpose of the Water Quality Act. In assigning responsibilities to constituent agencies, the commission shall give priority to the primary interests of the constituent agencies. The department of environment shall provide technical services, including certification of permits pursuant to the federal act, and shall maintain a repository of the scientific data required by this act;

G. may enter into or authorize constituent agencies to enter into agreements with the federal government or other state governments for purposes consistent with the Water Quality Act and receive and allocate to constituent agencies funds made available to the commission;

H. may grant an individual variance from any regulation of the commission whenever it is found that compliance with the regulation will impose an unreasonable burden upon any lawful business, occupation or activity. The commission may only grant a variance conditioned upon a person effecting a particular abatement of water pollution within a reasonable period of time. Any variance shall be granted for the period of time specified by the commission. The commission shall adopt regulations specifying the procedure under which variances may be sought, which regulations shall provide for the holding of a public hearing before any variance may be granted;

I. may adopt regulations to require the filing with it or a constituent agency of proposed plans and specifications for the construction and operation of new sewer systems, treatment works or sewerage systems or extensions, modifications of or additions to new or existing sewer systems, treatment works or sewerage systems. Filing with and approval by the federal housing administration of plans for an extension to an existing or construction of a new sewerage system intended to serve a subdivision solely residential in nature shall be deemed compliance with all provisions of this subsection;

J. may adopt regulations requiring notice to it or a constituent agency of intent to introduce or allow the introduction of water contaminants into waters of the state;

K. shall specify in regulations the measures to be taken to prevent water pollution and to monitor water quality. The commission may adopt regulations for particular industries. The commission shall adopt regulations for the dairy industry and the copper industry. The commission shall consider, in addition to the factors listed in Subsection E of this section, the best available scientific information. The regulations may include variations in requirements based on site-specific factors, such as depth and distance to ground water and geological and hydrological conditions. The constituent agency shall establish an advisory committee composed of persons with knowledge and expertise particular to the industry category and other interested stakeholders to advise the constituent agency on appropriate regulations to be proposed for adoption by the commission. The regulations shall be developed and adopted in accordance with a schedule approved by the commission. The schedule shall incorporate an opportunity for public input and stakeholder negotiations;

L. may adopt regulations establishing pretreatment standards that prohibit or control the introduction into publicly owned sewerage systems of water contaminants that are not susceptible to treatment by the treatment works or that would interfere with the operation of the treatment works;

M. shall not require a permit respecting the use of water in irrigated agriculture, except in the case of the employment of a specific practice in connection with such irrigation that documentation or actual case history has shown to be hazardous to public health or the environment;

N. shall not require a permit for applying less than two hundred fifty gallons per day of private residential gray water originating from a residence for the resident's household gardening, composting or landscape irrigation if:

(1) a constructed gray water distribution system provides for overflow into the sewer system or on-site wastewater treatment and disposal system;

(2) a gray water storage tank is covered to restrict access and to eliminate habitat for mosquitos or other vectors;

(3) a gray water system is sited outside of a floodway;

(4) gray water is vertically separated at least five feet above the ground water table;

(5) gray water pressure piping is clearly identified as a nonpotable water conduit;

(6) gray water is used on the site where it is generated and does not run off the property lines;

(7) gray water is applied in a manner that minimizes the potential for contact with people or domestic pets;

(8) ponding is prohibited, application of gray water is managed to minimize standing water on the surface and to ensure that the hydraulic capacity of the soil is not exceeded;

(9) gray water is not sprayed;

(10) gray water is not discharged to a watercourse; and

(11) gray water use within municipalities or counties complies with all applicable municipal or county ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978; and

O. shall coordinate application procedures and

funding cycles for loans and grants from the federal

government and from other sources, public or private, with

the local government division of the department of finance

and administration pursuant to the New Mexico Community

Assistance Act] and

(d) specifying the measures to be taken to prevent water pollution and to monitor water quality, except as provided by Subsection B of this section. The secretary may adopt rules for particular industries and shall adopt rules for the copper mining industry, but the director of the New Mexico department of agriculture shall adopt rules for the dairy industry. The secretary shall consider, in addition to the factors listed in this section, the best available scientific information. The rules may include variations in requirements based on site-specific factors, such as depth and distance to ground water and geological and hydrological conditions. The constituent agency shall establish an advisory committee composed of persons with knowledge and expertise particular to the industry category and other interested stakeholders to advise the constituent agency on appropriate rules to be proposed for adoption by the secretary. The rules shall be developed and adopted in accordance with a schedule approved by the secretary. The schedule shall incorporate an opportunity for public input and stakeholder negotiations;

(5) may adopt rules:

(a) requiring the filing with the secretary or a constituent agency of proposed plans and specification for the construction and operation of new sewer systems, treatment works or sewerage systems or extensions, modifications of or additions to new or existing sewer systems, treatment works or sewerage systems. Filing with and approval by the federal housing administration of plans for an extension to an existing, or construction of a new, sewerage system intended to serve a subdivision solely residential in nature shall be deemed compliance with all provisions of this subsection;

(b) requiring notice to the secretary or a constituent agency of intent to introduce or allow the introduction of water contaminants into waters of the state; and

(c) establishing pretreatment standards that prohibit or control the introduction into publicly owned sewerage systems of water contaminants that are not susceptible to treatment by the treatment works or that would interfere with the operation of the treatment works;

(6) with respect to the adoption and administration of rules assigned under Subsection B of this section:

(a) shall provide technical services, including certification of permits pursuant to the federal act, and shall maintain a repository of the scientific data required by that act;

(b) may participate as a party in any rulemaking; and

(c) may delegate to a constituent agency authority to act as the state water pollution control agency for the purpose stated in Subsection A of this section;

(7) may enter into or authorize constituent agencies to enter into agreements with the federal government or other state governments for purposes consistent with the Water Quality Act and may receive and allocate to constituent agencies funds made available to the secretary;

(8) may grant an individual variance from any rule of the secretary whenever it is found that compliance with the rule will impose an unreasonable burden upon any lawful business, occupation or activity. The secretary may only grant a variance conditioned upon the person effecting a particular abatement of water pollution within a reasonable period of time. Any variance shall be granted for the period of time specified by the secretary. The secretary shall adopt rules specifying the procedure under which variances may be sought, which rules shall provide for the holding of a public hearing before any variance may be granted;

(9) shall not require a permit, nor shall a constituent agency require a permit:

(a) respecting the use of water in irrigated agriculture, except in the case of the employment of a specific practice in connection with such irrigation that documentation or actual case history has shown to be hazardous to public health or the environment; or

(b) for applying less than two hundred fifty gallons per day of private residential gray water originating from a residence for the resident's household gardening, composting or landscape irrigation if: 1) a constructed gray water distribution system provides for overflow into the sewer system or an on-site wastewater treatment and disposal system; 2) a gray water storage tank is covered to restrict access and eliminate habitat for mosquitos or other vectors; 3) a gray water system is sited outside of a flood way; 4) gray water is vertically separated at least five feet above the ground water table; 5) gray water pressure piping is clearly identified as a nonpotable water conduit; 6) gray water is used on the site where it is generated and does not run off the property lines; 7) gray water is applied in a manner that minimizes the potential for contact with people or domestic pets; 8) ponding is prohibited, application of gray water is managed to minimize standing water on the surface and the hydraulic capacity of the soil is not exceeded; 9) gray water is not sprayed; 10) gray water is not discharged to a watercourse; and 11) gray water use within municipalities or counties complies with all applicable municipal or county ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978; and

(10) shall coordinate application procedures and funding cycles for loans and grants from the federal government and from other sources, public or private, with the local government division of the department of finance and administration pursuant to the New Mexico Community Assistance Act.

B. Except as otherwise provided by this section, responsibility to adopt and administer rules in accordance with this section, including standards set forth for the secretary, is assigned as follows:

(1) relating to the oil and gas industry, to the oil conservation commission;

(2) relating to the agriculture industry, to the New Mexico department of agriculture; and

(3) relating to the mining industry, to the mining and minerals division of the energy, minerals and natural resources department."

SECTION 3. Section 74-6-5 NMSA 1978 (being Laws 1973, Chapter 326, Section 4, as amended) is amended to read:

"74-6-5. PERMITS--CERTIFICATION [APPEALS TO COMMISSION].--

A. By [regulation] rule, the [commission] secretary may require persons to obtain from a constituent agency designated by the [commission] secretary a permit for the discharge of any water contaminant or for the disposal or reuse of septage or sludge.

B. The [commission] secretary shall adopt [regulations] rules establishing procedures for certifying federal water quality permits.

C. Prior to the issuance of a permit, the constituent agency may require the submission of plans, specifications and other relevant information that it deems necessary.

D. The [commission] secretary, or the constituent agency authorized to adopt rules, shall by [regulation] rule set the dates upon which applications for permits shall be filed and designate the time periods within which the constituent agency shall, after the filing of an administratively complete application for a permit, either grant the permit, grant the permit subject to conditions or deny the permit. The constituent agency has the burden of showing that each condition is reasonable and necessary to ensure compliance with the Water Quality Act and applicable [regulations] rules, considering site-specific conditions. After [regulations] rules have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the [regulations] rules. Additional conditions on a final permit may be imposed if the applicant is provided with an opportunity to review and provide comments in writing on the draft permit conditions and to receive a written explanation of the reasons for the conditions from the constituent agency.

E. The secretary or constituent agency shall deny any application for a permit or deny the certification of a federal water quality permit if:

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

(2) any provision of the Water Quality Act would be violated;

(3) the discharge would cause or contribute to water contaminant levels in excess of any state or federal standard. Determination of the discharge's effect on ground water shall be measured at any place of withdrawal of water for present or reasonably foreseeable future use. Determination of the discharge's effect on surface waters shall be measured at the point of discharge; or

(4) the applicant has, within the ten years immediately preceding the date of submission of the permit application:

(a) knowingly misrepresented a material fact in an application for a permit;

(b) refused or failed to disclose any information required under the Water Quality Act;

(d) been convicted of a felony in any court for any crime defined by state or federal law as being a restraint of trade, price-fixing, bribery or fraud;

(e) exhibited a history of willful disregard for environmental laws of any state or the United States; or

(f) had an environmental permit revoked or permanently suspended for cause under any environmental laws of any state or the United States.

F. The [commission] secretary, or the constituent agency authorized to adopt rules, shall by [regulation] rule develop procedures that ensure that the public, affected governmental agencies and any other state whose water may be affected shall receive notice of each application for issuance, renewal or modification of a permit. Public notice shall include:

(1) for issuance or modification of a permit:

(a) notice by mail to adjacent and nearby landowners; local, state and federal governments; land grant organizations; ditch associations; and Indian nations, tribes or pueblos;

(b) posting at a place conspicuous to the public and near the discharge or proposed discharge site; and

(c) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge or proposed discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections; and

(2) for issuance of renewals of permits:

(a) notice by mail to the interested public, municipalities, counties, land grant organizations, ditch associations and Indian nations, tribes or pueblos; and

(b) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections.

G. No ruling shall be made on any application for a permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit evidence, data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The hearing shall be recorded. Any person submitting evidence, data, views or arguments shall be subject to examination at the hearing.

H. The [commission] secretary, or the constituent agency authorized to adopt rules, may adopt [regulations] rules for the operation and maintenance of the permitted facility, including requirements, as may be necessary or desirable, that relate to continuity of operation, personnel training and financial responsibility, including financial responsibility for corrective action.

I. Permits shall be issued for fixed terms not to exceed five years, except that for new discharges, the term of the permit shall commence on the date the discharge begins, but in no event shall the term of the permit exceed seven years from the date the permit was issued.

J. By [regulation] rule, the [commission] secretary, or the constituent agency authorized to adopt rules, may impose reasonable conditions upon permits requiring permittees to:

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

(2) sample effluents 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 [commission] secretary;

(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 direct or indirect release of water contaminants; and

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

K. The [commission] secretary, or the constituent agency authorized to adopt rules, shall provide by [regulation] rule a schedule of fees for permits, not exceeding the estimated cost of investigation and issuance, modification and renewal of permits. Fees collected pursuant to this section shall be deposited in the water quality management fund.

L. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Water Quality Act, any applicable [regulations] rules or water quality standards of the [commission] secretary, or the constituent agency authorized to adopt such rules, or any applicable federal laws, regulations or standards.

M. A permit may be terminated or modified by the secretary or constituent agency that issued the permit prior to its date of expiration for any of the following causes:

(1) violation of any condition of the permit;

(2) obtaining the permit by misrepresentation or failure to disclose fully all relevant facts;

(3) violation of any provisions of the Water Quality Act or any applicable [regulations] rules, standard of performance or water quality standards;

(4) violation of any applicable state or federal effluent rules, regulations or limitations; or

(5) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.

N. If the secretary or constituent agency denies, terminates or modifies a permit or grants a permit subject to condition, the secretary or constituent agency shall notify the applicant or permittee by certified mail of the action taken and the reasons. Notice shall also be given by mail to persons who participated in the permitting action.

[O. A person who participated in a permitting action before a constituent agency or a person affected by a certification of a federal permit and who is adversely affected by such permitting action or certification may file a petition for review before the commission. Unless a timely petition for review is made, the decision of the constituent agency shall be final and not subject to judicial review. The petition shall:

(1) be made in writing to the commission within thirty days from the date notice is given of the constituent agency's action;

(2) include a statement of the issues to be raised and the relief sought; and

(3) be provided to all other persons submitting evidence, data, views or arguments in the proceeding before the constituent agency.

P. If a timely petition for review is made, the commission shall consider the petition within ninety days after receipt of the petition. The commission shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the review. If the petitioner is not the applicant or permittee, the applicant or permittee shall be a party to the proceeding. The commission shall ensure that the public receives notice of the date, time and place of the review.

Q. The commission shall review the record compiled before the constituent agency, including the transcript of any public hearing held on the application or draft permit, and shall allow any party to submit arguments. The commission may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the commission. The commission shall consider and weigh only the evidence contained in the record before the constituent agency and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the constituent agency. Based on the review of the evidence, the arguments of the parties and recommendations of the hearing officer, the commission shall sustain, modify or reverse the action of the constituent agency. The commission shall enter ultimate findings of fact and conclusions of law and keep a record of the review.

R. Prior to the date set for review, if a party shows to the satisfaction of the commission that there was no reasonable opportunity to submit comment or evidence on an issue being challenged, the commission shall order that additional comment or evidence be taken by the constituent agency. Based on the additional evidence, the constituent agency may revise the decision and shall promptly file with the commission the additional evidence received and action taken. The commission shall consider the additional evidence within ninety days after receipt of the additional evidence and shall notify the petitioner and the applicant or permittee, if other than the petitioner, of the date, time and place of the review.

S. The commission shall notify the petitioner and all other participants in the review proceeding of the action

taken by the commission and the reasons for that action.]"

SECTION 4. Section 74-6-5.1 NMSA 1978 (being Laws 1993, Chapter 291, Section 12) is amended to read:

"74-6-5.1. DISCLOSURE STATEMENTS.--

A. The [commission by regulation] secretary by rule may require every applicant for a permit to dispose or use septage or sludge or, within a source category designated by the [commission] secretary, to file with the appropriate constituent agency a disclosure statement. The disclosure statement shall be submitted on a form developed by the [commission] secretary and the department of public safety. The [commission] secretary, in cooperation with the department of public safety, shall determine the information to be contained in the disclosure statement. The disclosure statement shall be submitted to the constituent agency at the same time that the applicant files an application for a permit pursuant to Section 74-6-5 NMSA 1978. The [commission] secretary shall adopt [regulations] rules designating additional categories of sources subject to the disclosure requirements of this section as it deems appropriate and necessary to carry out the purposes of this section.

B. Upon a request by the constituent agency, the department of public safety shall prepare and transmit to the constituent agency an investigative report on the applicant within ninety days after the department of public safety receives an administratively complete disclosure statement prepared by the applicant for a permit. The investigative report shall be based in part upon the disclosure statement. The ninety-day deadline for preparing the investigative report may be extended by the constituent agency for a reasonable period of time for good cause. The department of public safety in preparing the investigative report may request and receive criminal history information from any other law enforcement agency or organization. The constituent agency may also request information regarding a person who will be or could reasonably be expected to be involved in management activities of the permitted facility or a person who has a controlling interest in a permitted facility. The information received from a law enforcement agency shall be kept confidential by the department of public safety to the extent that confidentiality is imposed by the law enforcement agency as a condition for providing the information to the constituent agency or the [commission] secretary.

C. All persons required to file a disclosure statement shall provide any assistance or information requested by the constituent agency or the department of public safety and shall cooperate in any inquiry or investigation conducted by the department of public safety. If a person required to file a disclosure statement refuses to comply with a formal request to answer an inquiry or produce information, evidence or testimony, the application of the applicant or the permit of the permittee shall be denied or terminated by the constituent agency.

D. If the information required to be included in the disclosure statement changes or if additional information should be added after the filing of the disclosure statement, the person required to file the disclosure statement shall provide the information to the constituent agency in writing within thirty days after the change or addition. Failure to provide the information within thirty days shall constitute the basis for the termination of a permit or denial of an application for a permit. Prior to terminating a permit or denying an application for a permit, the constituent agency shall notify the permittee or applicant of the constituent agency's intent to terminate a permit or deny an application and the constituent agency shall give the permittee or applicant fourteen days from the date of notice to satisfactorily explain why the information was not provided within the thirty-day period. The constituent agency shall consider the explanation of the permittee or applicant when determining whether to terminate the permit or deny the application for a permit.

E. No person shall be required to submit the disclosure statement required by this section if:

(1) the application is for a facility owned and operated by the state, a political subdivision of the state or an agency of the federal government or for the permitted disposal or use of septage or sludge on the premises where the sludge or septage is generated;

(2) the person has submitted a disclosure statement pursuant to this section within the previous year and no changes have occurred that would require disclosure [under] as provided in Subsection D of this section; or

(3) the person is a corporation or an officer, director or shareholder of that corporation and that corporation:

(a) has on file and in effect with the federal securities and exchange commission a registration statement required by Section 5, Chapter 38, Title 1 of the federal Securities Act of 1933, as amended;

(b) submits to the constituent agency with the application for a permit evidence of the registration described in Subparagraph (a) of this [subsection] paragraph and a copy of the corporation's most recent annual form 10-k or an equivalent report; and

(c) submits to the constituent agency on the anniversary date of the issuance of the permit evidence of registration described in Subparagraph (a) of this [subsection] paragraph and a copy of the corporation's most recent annual form 10-k or an equivalent report.

F. Permit decisions made pursuant to this section shall be subject to the procedures established in Section

74-6-5 NMSA 1978, including notice [and appeals]."

SECTION 5. Section 74-6-5.2 NMSA 1978 (being Laws 1993, Chapter 100, Section 4) is amended to read:

"74-6-5.2. WATER QUALITY MANAGEMENT FUND CREATED.--There is created in the state treasury the "water quality management fund" to be administered by the department of environment. All fees collected pursuant to the [regulations] rules adopted by the [commission under Subsection H of] secretary pursuant to Section 74-6-5 NMSA 1978 shall be deposited in the fund. Money in the fund is appropriated to the department of environment for the purpose of administering the [regulations] rules adopted by the [commission] secretary pursuant to Section 74-6-5 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 environment."

SECTION 6. Section 74-6-6 NMSA 1978 (being Laws 1967, Chapter 190, Section 5, as amended) is amended to read:

"74-6-6. ADOPTION OF [REGULATIONS AND STANDARDS] RULES--NOTICE AND HEARING--LEGISLATIVE REVIEW.--

[A. No regulation or water quality standard or amendment or repeal thereof shall be adopted until after a public hearing.

B. Any person may petition in writing to have the commission adopt, amend or repeal a regulation or water quality standard. The commission shall determine whether to hold a hearing within ninety days of submission of the petition. The denial of such a petition shall not be subject to judicial review.

C. Hearings on regulations or water quality standards of statewide application shall be held in Santa Fe. Hearings on regulations or standards that are not of statewide application may be held within the area that is substantially affected by the regulation or standard. At least thirty days prior to the hearing date, notice of the hearing shall be published in the New Mexico register and a newspaper of general circulation in the area affected and mailed to all persons who have made a written request to the commission for advance notice of hearings and who have provided the commission with a mailing address. The notice shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed regulation or water quality standard.

D. At the hearing, the commission shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The commission may designate a hearing officer to take evidence in the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the commission.

E. No regulation or water quality standard or amendment or repeal thereof adopted by the commission shall become effective until thirty days after its filing in accordance with the provisions of the State Rules Act.]

A. No rule or amendment or repeal thereof shall be adopted except in compliance with the State Rules Act and this section after a public hearing.

B. Any person may petition in writing to have the secretary or constituent agency adopt, amend or repeal a rule. The secretary or constituent agency shall determine whether to hold a hearing within ninety days of submission of the petition. The denial of such a petition shall not be subject to judicial review.

C. Hearings on rules of statewide application shall be held in Santa Fe. Hearings on rules that are not of statewide application may be held within the area that is substantially affected by the rule. At least thirty days prior to the hearing date, notice of the hearing shall be published in the New Mexico register and a newspaper of general circulation in the area affected and mailed to all persons who have made a written request to the secretary for advance notice of hearings and who have provided the secretary with a mailing address. The notice shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed rule.

D. At the hearing, the secretary or constituent agency shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The secretary or constituent agency may designate a hearing officer to take evidence in the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the secretary or constituent agency.

E. No rule or amendment or repeal thereof adopted by the secretary or constituent agency shall become effective until the secretary, the state engineer, the director of the New Mexico department of agriculture and the secretary of energy, minerals and natural resources indicate in writing their concurrence with the adopted rule.

F. The secretary or constituent agency shall file a copy of a rule or amendment or repeal thereof with the New Mexico legislative council at the same time it is filed with the state records center for publication in the New Mexico register under the State Rules Act. No rule or amendment or repeal thereof adopted by the secretary shall become effective until thirty days after its filing in accordance with the provisions of the State Rules Act.

G. The New Mexico legislative council may request an interim or standing committee to review rules in effect under the Water Quality Act. The standing or interim committee may request from the secretary or constituent agency information necessary to review the rules. The standing or interim committee may examine each rule to determine whether the:

(1) rule is a valid exercise of delegated legislative authority;

(2) statutory authority for the rule has expired or been repealed;

(3) rule is necessary to accomplish the apparent or expressed intent of the specific statute that the rule implements;

(4) rule is a reasonable implementation of the law as it applies to any affected class of persons; and

(5) rule affects the finances and operation of departments, agencies and institutions of the state and all of its political subdivisions.

H. No later than sixty days after receiving a request by the New Mexico legislative council to review a rule under the Water Quality Act, the interim or standing committee shall either approve or disapprove the rule. If the interim or standing committee approves the rule, then the rule remains in effect. If the interim or standing committee disapproves the rule, then the new effective date of the rule is the date of adjournment of the next regular session of the legislature."

SECTION 7. Section 74-6-7 NMSA 1978 (being Laws 1967, Chapter 190, Section 6, as amended) is amended to read:

"74-6-7. ADMINISTRATIVE ACTION--JUDICIAL REVIEW.--

[A. Except as otherwise provided in the Water Quality Act, a person who is adversely affected by a regulation adopted by the commission or by a compliance order approved by the commission or who participated in a permitting action or appeal of a certification before the commission and who is adversely affected by such action may appeal to the court of appeals for further relief. All such appeals shall be upon the record made before the commission and shall be taken to the court of appeals within thirty days after the regulation, compliance order, permitting action or certification that is being appealed occurred. If an appeal of a regulation is made, then the date of the commission's action shall be the date of the filing of the regulation under the State Rules Act.

B. Upon appeal, the court of appeals shall set aside the commission's action only if it is found to be:

(1) arbitrary, capricious or an abuse of discretion;

(2) not supported by substantial evidence in the record; or

(3) otherwise not in accordance with law.

C. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted pending the outcome of the judicial review. The stay of the action may be granted by the commission or by the court of appeals if the commission denies a stay within ninety days after receipt of the application.]

A. A person who is adversely affected by a rule adopted by the secretary pursuant to the Water Quality Act may appeal to district court for further relief. The appeal may be taken to the district court for the county in which the secretary or constituent agency maintains its principal office or the district court of any county in which a hearing on the matter was conducted. When notices of appeal are filed in more than one district court, all appeals not filed in the district court in which the first appeal was properly filed shall be dismissed without prejudice. An appellant whose appeal was dismissed without prejudice pursuant to the provisions of this subsection shall have fifteen days after receiving service of the notice of dismissal to file a notice of appeal in the district court in which the first appeal was properly filed. If an appeal of a rule is made, the date of the secretary's action shall be the date of the filing of the rule under the State Rules Act.

B. A person who is adversely affected by a compliance order issued pursuant to the Water Quality Act or who participated in a permitting action or certification before a constituent agency and who is adversely affected by such action pursuant to that act may appeal to district court for further relief under Section 39-3-1.1 NMSA 1978.

C. Upon any appeal to the district court, if a party shows to the satisfaction of the district court that there was no reasonable opportunity to submit comments or evidence on an issue being challenged, the district court may order a trial de novo. If the district court does not order a trial de novo, the appeal shall be upon the record made before the secretary or constituent agency. The district court shall set aside the action by the secretary or constituent agency only if it is found to be:

(1) arbitrary, capricious or an abuse of discretion;

(2) not supported by substantial evidence in the record;

(3) otherwise not in accordance with law; or

(4) unwarranted by the facts if the facts are subject to a trial de novo by the district court.

D. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted pending the outcome of the judicial review. The stay of the action may be granted by the secretary or constituent agency prior to the filing of an appeal for judicial review or by the district court."

SECTION 8. Section 74-6-8 NMSA 1978 (being Laws 1967, Chapter 190, Section 7) is amended to read:

"74-6-8. DUTIES OF CONSTITUENT AGENCIES.--Each constituent agency shall administer [regulations] rules adopted pursuant to the Water Quality Act, responsibility for the administration of which has been assigned to it by the [commission] secretary."

SECTION 9. Section 74-6-9 NMSA 1978 (being Laws 1967, Chapter 190, Section 8, as amended) is amended to read:

"74-6-9. POWERS OF CONSTITUENT AGENCIES.--Each constituent agency may:

A. receive and expend funds appropriated, donated or allocated to the constituent agency for purposes consistent with the Water Quality Act;

B. develop facts and make studies and investigations and require the production of documents necessary to carry out the responsibilities assigned to the constituent agency. The result of any investigation shall be reduced to writing and a copy furnished to the [commission] secretary or head of the constituent agency and to the owner or occupant of the premises investigated;

C. report to the [commission] secretary and to other constituent agencies water pollution conditions that are believed to require action where the circumstances are such that the responsibility appears to be outside the responsibility assigned to the agency making the report;

D. make every reasonable effort to obtain voluntary cooperation in the prevention or abatement of water pollution;

E. upon presentation of proper credentials, enter at reasonable times upon or through any premises in which a water contaminant source is located or in which are located any records required to be maintained by [regulations] rules of the federal government or the [commission] secretary; provided that entry into any private residence without the permission of the owner shall be only by order of the district court for the county in which the residence is located and that, in connection with any entry provided for in this subsection, the constituent agency may:

(1) have access to and reproduce for [their] its use any copy of the records;

(2) inspect any treatment works, monitoring equipment or methods required to be installed by [regulations] rules of the federal government or the [commission] secretary; and

(3) sample any effluents, water contaminant or receiving waters;

F. on the same basis as any other person, recommend and propose [regulations and standards] rules for promulgation by the [commission] secretary; and

G. on the same basis as any other person, present data, views or arguments and examine witnesses and otherwise participate at all hearings conducted by the [commission] secretary or any other administrative agency with responsibility in the areas of environmental management, public health or consumer protection, but shall not be given any special status over any other party [provided that the participation by a constituent agency in a hearing shall not require the recusal or disqualification of the commissioner representing that constituent agency]."

SECTION 10. Section 74-6-10 NMSA 1978 (being Laws 1967, Chapter 190, Section 9, as amended) is amended to read:

"74-6-10. PENALTIES ENFORCEMENT--COMPLIANCE ORDERS--PENALTIES--ASSURANCE OF DISCONTINUANCE.--

A. Whenever, on the basis of any information, a constituent agency determines that a person violated or is violating a requirement [regulation or water quality standard] or rule adopted pursuant to the Water Quality Act or a condition of a permit issued pursuant to that act, the constituent agency may:

(1) issue a compliance order requiring compliance immediately or within a specified time period or issue a compliance order assessing a civil penalty, or both; or

(2) commence a civil action in district court for appropriate relief, including injunctive relief.

B. A compliance order issued pursuant to Paragraph (1) of Subsection A of this section may include a suspension or termination of the permit allegedly violated.

C. A compliance order shall state with reasonable specificity the nature of the violation. Any penalty assessed in the compliance order shall not exceed:

(1) fifteen thousand dollars ($15,000) per day of noncompliance with the provisions in Section 74-6-5 NMSA 1978, including a [regulation] rule adopted or a permit issued pursuant to that section; or

(2) ten thousand dollars ($10,000) per day for each violation of a provision of the Water Quality Act other than the provisions in Section 74-6-5 NMSA 1978 or of a [regulation or water quality standard] rule adopted pursuant to the Water Quality Act.

D. In assessing a penalty authorized by this section, the constituent agency shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.

E. For purposes of this section, a single operational event that leads to simultaneous violations of more than one standard shall be treated as a single violation.

F. If a person fails to take corrective actions within the time specified in a compliance order, the constituent agency may:

(1) assess a civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of continued noncompliance with the compliance order; and

(2) suspend or terminate the permit violated by the person.

G. [Any] A compliance order issued by a constituent agency pursuant to this section shall become final unless, no later than thirty days after the compliance order is served, [any] a person named in the compliance order submits a written request to the [commission] secretary for a public hearing. The [commission] secretary shall conduct a public hearing within ninety days after receipt of a request.

H. The [commission] secretary may appoint an independent hearing officer to preside over [any] a public hearing held pursuant to Subsection [F] G of this section. The hearing officer shall:

(1) make and preserve a complete record of the proceedings; and

(2) forward to the [commission] secretary a report that includes recommendations if recommendations are requested by the [commission] secretary.

I. The [commission] secretary shall consider the findings of the independent hearing officer, and based on the evidence presented at the hearing, the [commission] secretary shall make a final decision regarding the compliance order.

J. In connection with any proceeding [under] provided for in this section, the [commission] secretary may:

(1) adopt rules for discovery procedures; and

(2) issue subpoenas for the attendance and testimony of witnesses and for relevant papers, books and documents.

K. Penalties collected pursuant to this section shall be deposited in the general fund.

L. As an additional means of enforcing the Water Quality Act or any [regulation or standard of the commission] applicable rules, the [commission] secretary or a constituent agency may accept an assurance of discontinuance of any act or practice deemed in violation of the Water Quality Act, or any [regulation or standard] rule adopted pursuant to that act, from any person engaging in, or who has engaged in, such act or practice, signed and acknowledged by the [chairman of the commission] secretary or constituent agency and the party affected. Any such assurance shall specify a time limit during which the discontinuance is to be accomplished."

SECTION 11. Section 74-6-10.1 NMSA 1978 (being Laws 1993, Chapter 291, Section 14) is amended to read:

"74-6-10.1. CIVIL PENALTIES.--

A. Any person who does not comply with the provisions of Section 74-6-5 NMSA 1978, including any [regulation] rule adopted pursuant to that section or any permit issued pursuant to that section, shall be assessed civil penalties up to the amount of fifteen thousand dollars ($15,000) per day of noncompliance for each violation.

B. Any person who violates any provision of the Water Quality Act other than Section 74-6-5 NMSA 1978 or any person who violates any [regulation, water quality standard] rule or compliance order adopted pursuant to that act shall be assessed civil penalties up to the amount of ten thousand dollars ($10,000) per day for each violation."

SECTION 12. Section 74-6-10.2 NMSA 1978 (being Laws 1993, Chapter 291, Section 15) is amended to read:

"74-6-10.2. CRIMINAL PENALTIES.--

A. [No] A person shall not:

(1) discharge any water contaminant without a permit for the discharge, if a permit is required, or in violation of any condition of a permit for the discharge from the federal environmental protection agency, the [commission] secretary or a constituent agency designated by the [commission] secretary;

(2) make any false material statement, representation, certification or omission of material fact in an application, record, report, plan or other document filed, submitted or required to be maintained under the Water Quality Act;

(3) falsify, tamper with or render inaccurate any monitoring device, method or record required to be maintained under the Water Quality Act;

(4) fail to monitor, sample or report as required by a permit issued pursuant to a state or federal law or regulation; or

(5) introduce into a sewerage system or into a publicly owned treatment works any water contaminant or hazardous substance, other than in compliance with all applicable federal, state or local requirements or permits, that the person knew or reasonably should have known could cause personal injury or property damage, [which] that causes the treatment works to violate an effluent limitation or condition in a permit issued to the treatment works pursuant to the Water Quality Act or applicable federal water quality statutes.

B. Any person who knowingly violates or knowingly causes or allows another person to violate Subsection A of this section is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section

31-18-15 NMSA 1978.

C. Any person who is convicted of a second or subsequent violation of Subsection A of this section is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

D. Any person who knowingly violates Subsection A of this section or knowingly causes another person to violate Subsection A of this section and thereby causes a substantial adverse environmental impact is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

E. Any person who knowingly violates Subsection A of this section and knows at the time of the violation that [he] the person is creating a substantial danger of death or serious bodily injury to any other person is guilty of a second degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

F. A single operational event that leads to simultaneous violations of more than one water contaminant parameter shall be treated as a single violation."

SECTION 13. Section 74-6-11 NMSA 1978 (being Laws 1967, Chapter 190, Section 10, as amended) is amended to read:

"74-6-11. EMERGENCY--POWERS OF DELEGATED CONSTITUENT AGENCIES--PENALTIES.--

A. If a constituent agency determines upon receipt of evidence that a pollution source or combination of sources over which it has been delegated authority [by the commission] pursuant to the Water Quality Act poses an imminent and substantial danger to public health, it may bring suit in the district court for the county in which such a source is located to:

(1) restrain immediately any person causing or contributing to the alleged condition from further causing or contributing to the condition; or

(2) take such other action as deemed necessary and appropriate.

B. If it is not practicable to assure prompt protection of public health solely by commencement of a civil action as set forth in Subsection A of this section, the constituent agency may issue such orders as it deems necessary to protect public health. [Any] An order issued by the constituent agency shall be effective for not more than seventy-two hours unless the constituent agency brings an action in district court within the seventy-two-hour period. If the constituent agency brings an action within seventy-two hours of issuance of the order, the order shall be effective for one hundred sixty-eight hours or for a longer period of time authorized by the court.

C. Any person who willfully violates or fails or refuses to comply with an order issued by a constituent agency [under] pursuant to the provisions of Subsection B of this section shall, upon conviction, be punished by a fine of not more than five thousand dollars ($5,000) for each day during which the violation, failure or refusal occurs."

SECTION 14. Section 74-6-12 NMSA 1978 (being Laws 1967, Chapter 190, Section 11, as amended) is amended to read:

"74-6-12. LIMITATIONS.--

A. The Water Quality Act does not grant to the [commission] secretary, to a constituent agency or to any other entity the power to take away or modify the property rights in water, nor is it the intention of the Water Quality Act to take away or modify such rights.

B. The Water Quality Act does not apply to [any] an activity or condition subject to [the authority of the environmental improvement board pursuant to] the Hazardous Waste Act, the Ground Water Protection Act or the Solid Waste Act except to abate water pollution or to control the disposal or use of septage and sludge.

C. The Water Quality Act does not authorize the [commission] secretary or any constituent agency to adopt [any regulation] a rule with respect to any condition or quality of water if the water pollution and its effects are confined entirely within the boundaries of property within which the water pollution occurs when the water does not combine with other waters.

D. The Water Quality Act does not grant to the [commission] secretary or any constituent agency any jurisdiction or authority affecting the relation between employers and employees with respect to or arising out of any condition [of water] or quality of water.

E. The Water Quality Act does not supersede or limit the applicability of any law relating to industrial health, safety or sanitation.

F. Except as required by federal law, in the adoption of [regulations] rules and water quality standards and in an action for enforcement of the Water Quality Act and [regulations] rules adopted pursuant to that act, reasonable degradation of water quality resulting from beneficial use shall be allowed. Such degradation shall not result in impairment of water quality to the extent that water quality standards are exceeded.

G. The Water Quality Act does not apply to [any] an activity or condition subject to the authority of the oil conservation commission pursuant to provisions of the Oil and Gas Act, Section 70-2-12 NMSA 1978 and other laws conferring power on the oil conservation commission to prevent or abate water pollution.

H. When changes in dissolved oxygen, temperature, dissolved solids, sediment or turbidity in a water of the state is attributable to natural causes or to the reasonable operation of irrigation and flood control facilities that are not subject to federal or state water pollution control permitting, numerical standards for temperature, dissolved solids content, dissolved oxygen, sediment or turbidity adopted under the Water Quality Act do not apply. "Reasonable operation", as used in this subsection, shall be defined by [regulation] rule of the [commission] secretary or a constituent agency."

SECTION 15. Section 74-6-13 NMSA 1978 (being Laws 1967, Chapter 190, Section 12) is amended to read:

"74-6-13. CONSTRUCTION.--The Water Quality Act provides additional and cumulative remedies to prevent, abate and control water pollution, and nothing abridges or alters rights of action or remedies in equity under the common law or statutory law, criminal or civil. No provision of the Water Quality Act or any act done by virtue [thereof] of that act stops the state or any political subdivision or person as owner of water rights or otherwise in the exercise of [their] that person's rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution."

SECTION 16. Section 74-6-15 NMSA 1978 (being Laws 1993, Chapter 291, Section 13) is amended to read:

"74-6-15. CONFIDENTIAL INFORMATION--PENALTIES.--

A. Records, reports or information obtained by the [commission] secretary or a constituent agency pursuant to the Water Quality Act shall be generally available to the public. All ambient water quality data and all effluent data obtained by the [commission] secretary or a constituent agency shall be available to the public. Records, reports or information or particular parts of the records, reports or information shall be held confidential if a person can demonstrate to the [commission] secretary or constituent agency that the records, reports or information or particular parts of the records, reports or information, if made public, would divulge confidential business records or methods or processes entitled to protection as trade secrets. Except that the record, report or information may be disclosed:

(1) to officers, employees or authorized representatives of the [commission] secretary or a constituent agency concerned with carrying out the purposes and provisions of the Water Quality Act;

(2) to officers, employees or authorized representatives of the United States government; or

(3) when relevant in any proceeding pursuant to the Water Quality Act or the federal act.

B. The [commission] secretary shall promulgate [regulations] rules to implement the provisions of this section, including [regulations] rules specifying business records entitled to protection as confidential.

C. An officer, employee or authorized representative of the [commission] secretary or a constituent agency who knowingly or willfully publishes, divulges, discloses or makes known any information that is required to be considered confidential pursuant to this section shall be fined not more than one thousand dollars ($1,000) or [imprisonment of] imprisoned for not more than one year, or both."

SECTION 17. Section 74-6-16 NMSA 1978 (being Laws 1993, Chapter 291, Section 16) is amended to read:

"74-6-16. EFFECT AND ENFORCEMENT OF WATER QUALITY ACT DURING TRANSITION.--

A. All rules, regulations, water quality standards and administrative determinations of the water quality control commission and any constituent agency pertaining to the Water Quality Act that existed prior to [the effective date of this 1993 act] December 31, 2011 shall remain in full force and effect after that date until repealed or amended, unless in conflict with, prohibited by or inconsistent with the provisions of the Water Quality Act or subsequently adopted rules.

B. All enforcement actions taken before [the effective date of this 1993 act] December 31, 2011 shall be valid if based upon a violation of the Water Quality Act, including any rule, regulation or water quality standard that was in effect at the time of the violation.

C. All rules, regulations, water quality standards and administrative determinations that need to be initiated, amended or repealed due to amendments to the Water Quality Act in 2011 shall be adopted on or before December 31, 2011."

SECTION 18. Section 74-6-17 NMSA 1978 (being Laws 1987, Chapter 333, Section 15, as amended) is amended to read:

"74-6-17. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The water quality control commission is terminated on July 1, [2013] 2011 pursuant to the Sunset Act. [The commission shall continue to operate according to the provisions of Chapter 74, Article 6 NMSA 1978 until July 1, 2014. Effective July 1, 2014, Sections 74-6-3 and 74-6-4 NMSA 1978 are repealed.]"

SECTION 19. TEMPORARY PROVISION--TRANSFER OF FUNCTIONS, PERSONNEL, PROPERTY, CONTRACTS AND REFERENCES IN LAW.--On July 1, 2011:

A. all functions, personnel, appropriations, money, records, equipment, supplies and other property of the water quality control commission shall be transferred to the department of environment;

B. all contracts of the water quality control commission shall be binding and effective on the New Mexico department of agriculture; and

C. all references in law to the water quality control commission shall be deemed to be references to the secretary of environment.

SECTION 20. REPEAL.--Section 74-6-3.1 NMSA 1978 (being Laws 1982, Chapter 73, Section 28, as amended) is repealed.

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