SENATE BILL 296
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Brenda McKenna and Jeff Steinborn
AN ACT
RELATING TO THE ENVIRONMENT; AMENDING THE NEW MEXICO MINING ACT, THE AIR QUALITY CONTROL ACT, THE HAZARDOUS WASTE ACT, THE WATER QUALITY ACT AND THE SOLID WASTE ACT TO INCREASE CIVIL PENALTIES FOR VIOLATIONS, NONCOMPLIANCE AND FAILURE TO CORRECT FOR NONCOMPLIANCE TO ACCOUNT FOR INFLATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 69-36-17 NMSA 1978 (being Laws 1993, Chapter 315, Section 17) is amended to read:
"69-36-17. CIVIL PENALTIES.--
A. Civil penalties may be assessed by the director or the commission for violations of the New Mexico Mining Act, including a violation of a [regulation] rule of the commission, an order of the director, a permit condition and the order resulting from a hearing.
B. Civil penalties assessed by the director or the commission shall be imposed pursuant to [regulations] rules adopted by the commission. [Any] A penalty assessed shall not exceed [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) per day of noncompliance for each violation.
C. Circumstances to be considered by the commission or the director in determining the amount of the penalty to be assessed shall be the seriousness of the violation, efforts to comply with the requirements of the New Mexico Mining Act, recent history of violations and other relevant factors as determined by the commission and [regulations] rules adopted by the commission.
D. [Any] A penalty imposed by the director may be appealed to the commission, and [any] an order of the commission concerning a penalty may be appealed de novo to the district court within thirty days from issuance of the order imposing the penalty."
SECTION 2. Section 74-2-12 NMSA 1978 (being Laws 1992, Chapter 20, Section 14, as amended) is amended to read:
"74-2-12. ENFORCEMENT--COMPLIANCE ORDERS--FIELD CITATIONS.--
A. When, on the basis of any information, the secretary or the director determines that a person has violated or is violating a requirement or prohibition of the Air Quality Control Act, a [regulation] rule promulgated pursuant to that act or a condition of a permit issued under that act, the secretary or the director may:
(1) issue a compliance order within one year after the violation becomes known by the department or the local agency stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for a past or current violation, or both; or
(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.
B. An order issued pursuant to Subsection A of this section may include a suspension or revocation of the permit or portion thereof issued by the secretary or the director that is alleged to have been violated. [Any] A penalty assessed in the order shall not exceed [fifteen thousand dollars ($15,000)] thirty thousand dollars ($30,000) per day of noncompliance for each violation.
C. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the person named therein submits a written request to the secretary or the director for a public hearing. Upon such request, the secretary or the director shall promptly conduct a public hearing. The secretary or the director shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward the hearing officer's recommendation based thereon to the secretary or the director, who shall make the final decision.
D. The environmental improvement board or the local board may implement a field citation program through [regulations] rules establishing appropriate minor violations for which field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per day of violation may be issued by officers or employees of the department or the local agency as designated by the secretary or the director.
E. A person to whom a field citation is issued pursuant to Subsection D of this section may, within a reasonable time as prescribed by [regulation] rule by the environmental improvement board or the local board, elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the [regulation] rule, the penalty assessment in the field citation shall be final.
F. Payment of a civil penalty required by a field citation issued pursuant to Subsection D of this section shall not be a defense to further enforcement by the department or the local agency to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act if the violation continues.
G. In determining the amount of a penalty to be assessed pursuant to this section, the secretary, the director or the person issuing a field citation shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors.
H. In connection with a proceeding under this section, the secretary or the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.
I. If a person fails to comply with an administrative order, the secretary or director may initiate an action to suspend or revoke the permit, or portion thereof, alleged to have been violated or to commence a civil action in district court to enforce the order, or to suspend or revoke the permit, or both.
J. If a person fails to pay an assessment of a civil penalty, the secretary or director may commence a civil action in district court to collect the civil penalties assessed in the order.
K. Penalties collected pursuant to this section shall be deposited in the:
(1) municipal or county general fund, as applicable, if the administrative order or field citation was directed to a source located within a local authority; or
(2) state general fund if the administrative order or field citation was directed to any other source."
SECTION 3. Section 74-2-12.1 NMSA 1978 (being Laws 1992, Chapter 20, Section 15, as amended) is amended to read:
"74-2-12.1. CIVIL PENALTY--REPRESENTATION OF DEPARTMENT OR LOCAL AUTHORITY--LIMITATION OF ACTIONS.--
A. A person who violates a provision of the Air Quality Control Act or a [regulation] rule, permit condition or emergency order adopted or issued pursuant to that act may be assessed a civil penalty not to exceed [fifteen thousand dollars ($15,000)] thirty thousand dollars ($30,000) for each day during any portion of which a violation occurs.
B. A person who fails to comply with an administrative order issued pursuant to Section 74-2-12 NMSA 1978 may be assessed, pursuant to a court order, a civil penalty of not more than [twenty-five thousand dollars ($25,000)] fifty thousand dollars ($50,000) for each day of noncompliance with the order.
C. In an action to enforce the provisions of the Air Quality Control Act or an ordinance, [regulation] rule, permit condition or order, adopted, imposed or issued pursuant to that act:
(1) the department shall be represented by the attorney general;
(2) a local authority that is a municipality shall be represented by the attorney of the municipality; and
(3) a local authority that is a county shall be represented by the district attorney within whose judicial district the county lies.
D. No action for civil penalty shall be commenced more than five years from the date the violation was known by the department or the local agency."
SECTION 4. Section 74-4-10 NMSA 1978 (being Laws 1981 (1st S.S.), Chapter 8, Section 9, as amended) is amended to read:
"74-4-10. ENFORCEMENT--COMPLIANCE ORDERS--CIVIL PENALTIES.--
A. Whenever on the basis of any information the secretary determines that [any] a person has violated, is violating or threatens to violate [any] a requirement of the Hazardous Waste Act, [any] a rule adopted and promulgated pursuant to that act or [any] a condition of a permit issued pursuant to that act, the secretary may:
(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or
(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.
B. [Any] An order issued pursuant to Subsection A of this section may include a suspension or revocation of [any] a permit issued by the secretary. [Any] A penalty assessed in the order shall not exceed [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) per day of noncompliance for each violation. In assessing the penalty, the secretary shall take into account the seriousness of the violation and any good-faith efforts to comply with the applicable requirements. For violations related to storage tanks, "per violation" means per tank.
C. If a violator fails to take corrective actions within the time specified in a compliance order, the secretary may:
(1) assess a civil penalty of not more than [twenty-five thousand dollars ($25,000)] fifty thousand dollars ($50,000) for each day of continued noncompliance with the order; and
(2) suspend or revoke [any] a permit issued to the violator pursuant to the Hazardous Waste Act.
D. Whenever on the basis of any information the secretary determines that the immediate termination of a research, development and demonstration permit is necessary to protect human health or the environment, the secretary may order an immediate termination of all research, development and demonstration operations permitted pursuant to the Hazardous Waste Act at the facility.
E. Whenever on the basis of any information the secretary determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under Section 74-4-9 NMSA 1978, the secretary may issue an order requiring corrective action, including corrective action beyond a facility's boundaries or other response measure as [he] the secretary deems necessary to protect human health or the environment or may commence an action in district court in the district in which the facility is located for appropriate relief, including a temporary or permanent injunction.
F. [Any] An order issued under Subsection E of this section may include a suspension or revocation of authorization to operate under Section 74-4-9 NMSA 1978 and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance. If [any] a person named in an order fails to comply with the order, the secretary may assess, and the person shall be liable to the state for, a civil penalty in an amount not to exceed [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) for each day of noncompliance with the order.
G. [Any] An order issued pursuant to this section, any other enforcement proceeding initiated pursuant to this section or [any] a claim for personal or property injury arising from [any] conduct for which evidence of financial responsibility must be provided may be issued to or taken against the insurer or guarantor of an owner or operator of a treatment, storage or disposal facility or storage tank if:
(1) the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the federal Bankruptcy Code; or
(2) jurisdiction in [any] a state or federal court cannot with reasonable diligence be obtained over an owner or operator likely to be solvent at the time of judgment.
H. [Any] An order issued pursuant to this section shall become final unless, no later than thirty days after the order is served, the person named in the order submits a written request to the secretary for a public hearing. Upon such request, the secretary shall promptly conduct a public hearing. The secretary shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward [his] a recommendation based on the record to the secretary, who shall make the final decision.
I. In connection with [any] a proceeding under this section, the secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may promulgate rules for discovery procedures.
J. Penalties collected pursuant to an administrative order shall be deposited in the state treasury to be credited to the hazardous waste emergency fund."
SECTION 5. Section 74-4-10.1 NMSA 1978 (being Laws 1989, Chapter 322, Section 13) is amended to read:
"74-4-10.1. HAZARDOUS WASTE MONITORING, ANALYSIS AND TESTING.--
A. If the director determines, upon receipt of any information, that [(1)] the presence of any hazardous waste at a facility or site at which hazardous waste is or has been stored, treated or disposed of or [(2)] the release of any such waste from [such] the facility or site may present a substantial hazard to human health or the environment, [he] the director may issue an order requiring the owner or operator of [such] the facility to conduct such monitoring, testing, analysis and reporting with respect to [such] the facility or site as the director deems reasonable to ascertain the nature and extent of [such] the hazard.
B. In the case of [any] a facility or site not in operation at the time a determination is made under Subsection A of this section with respect to the facility or site, if the director finds that the owner of [such] the facility or site could not reasonably be expected to have actual knowledge of the presence of hazardous waste at [such] the facility or site and of its potential for release, the director may issue an order requiring the most recent previous owner or operator of [such] the facility or site who could reasonably be expected to have actual knowledge to carry out the provisions referred to in Subsection A of this section.
C. [Any] An order under Subsection A or B of this section shall require the person to whom [such] the order is issued to submit to the director, within thirty days from the issuance of [such] the order, a proposal for carrying out the required monitoring, testing, analysis and reporting. The director may, after providing [such] the person with an opportunity to confer with the director respecting [such] the proposal, require [such] the person to carry out [such] the monitoring, testing, analysis and reporting in accordance with [such] the proposal and [such] the modifications in [such] the proposal as the director deems reasonable to ascertain the nature and extent of the hazard.
D. [(1)] If the director determines that [no] an owner or operator referred to in Subsection A or B of this section is not able to conduct monitoring, testing, analysis or reporting satisfactory to the director, if the director deems any [such] action carried out by an owner or operator to be unsatisfactory or if the director cannot initially determine that there is an owner or operator referred to in Subsection A or B of this section who is able to conduct [such] monitoring, testing, analysis or reporting, the division may:
[(a)] (1) conduct monitoring, testing or analysis, or any combination thereof, [which he] that the director deems reasonable to ascertain the nature and extent of the hazard associated with the site concerned; or
[(b)] (2) authorize a local authority or other person to carry out [any such] the action; and
[(c)] (3) in either event [the director may] require, by order, the owner or operator referred to in Subsection A or B of this section to reimburse the division or other authority or person for the costs of [such] the activity. Any reimbursement to the division pursuant to this [subparagraph] paragraph shall be deposited to the credit of the hazardous waste fund.
[(2)] E. No order may be issued under [this] Subsection D of this section requiring reimbursement of the costs of any action carried out by the division [which] that confirms the results of an order issued under Subsection A or B of this section.
[(3)] F. For purposes of carrying out [this subsection] the provisions of Subsections D and E of this section, the director or any authority or other person authorized under [Paragraph (1) of this] Subsection D of this section may exercise the authorities set forth in Section 74-4-4.3 NMSA 1978.
[E.] G. The director may commence a civil action against any person who fails or refuses to comply with an order issued under this section. [Such] The action shall be brought in the district court of the county in which the defendant is located, resides or is doing business. [Such] The court shall have jurisdiction to require compliance with [such] the order and to assess a civil penalty not to exceed [five thousand dollars ($5,000)] ten thousand dollars ($10,000) for each day during which [such] the failure or refusal occurs."
SECTION 6. Section 74-4-12 NMSA 1978 (being Laws 1977, Chapter 313, Section 12, as amended) is amended to read:
"74-4-12. PENALTY--CIVIL.--[Any] A person who violates [any] a provision of the Hazardous Waste Act, [any] a rule made pursuant to that act or [any] a compliance order issued by the [director] secretary pursuant to Section 74-4-10 NMSA 1978 may be assessed a civil penalty not to exceed [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) for each day during any portion of which a violation occurs. For violations related to storage tanks, "per violation" means per tank."
SECTION 7. Section 74-4-13 NMSA 1978 (being Laws 1983, Chapter 302, Section 3, as amended) is amended to read:
"74-4-13. IMMINENT HAZARDS--AUTHORITY OF [DIRECTOR] SECRETARY--PENALTIES.--
A. Notwithstanding any other provision of the Hazardous Waste Act, whenever the secretary is in receipt of evidence that the past or current handling, storage, treatment, transportation or disposal of solid waste or hazardous waste or the condition or maintenance of a storage tank may present an imminent and substantial endangerment to health or the environment, [he] the secretary may bring suit in the appropriate district court to immediately restrain any person, including [any] a past or present generator, past or present transporter or past or present owner or operator of a treatment, storage or disposal facility, who has contributed or is contributing to such activity, to take such other action as may be necessary or both. A transporter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment or disposal taking place after such solid waste or hazardous waste has left the possession or control of such transporter if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. The secretary may also take other action, including [but not limited to] issuing such orders as may be necessary to protect health and the environment.
B. [Any] A person who willfully violates or fails or refuses to comply with [any] an order of the secretary under Subsection A of this section may in an action brought in the appropriate district court to enforce such order be fined not more than [five thousand dollars ($5,000)] ten thousand dollars ($10,000) for each day in which the violation occurs or the failure to comply continues.
C. Upon receipt of information that there is hazardous waste at [any] a site [which] that has presented an imminent and substantial endangerment to human health or the environment, the secretary shall provide immediate notice to the appropriate local government agencies. In addition, the [director] secretary shall require notice of such endangerment to be promptly posted at the site where the waste is located."
SECTION 8. 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] rule or water quality standard 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] A penalty assessed in the compliance order shall not exceed:
(1) [fifteen thousand dollars ($15,000)] thirty thousand dollars ($30,000) 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)] twenty thousand dollars ($20,000) 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] rule or water quality standard 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)] fifty thousand dollars ($50,000) 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 for a public hearing. The commission shall conduct a public hearing within ninety days after receipt of a request.
H. The commission 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 a report that includes recommendations if recommendations are requested by the commission.
I. The commission shall consider the findings of the independent hearing officer, and based on the evidence presented at the hearing, the commission shall make a final decision regarding the compliance order.
J. In connection with [any] a proceeding [under] provided for in this section, the commission 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] a rule or standard of the commission, the commission may accept an assurance of discontinuance of [any] an act or practice deemed in violation of the Water Quality Act, or [any regulation] a rule or standard adopted pursuant to that act, from [any] a person engaging in, or who has engaged in, such act or practice, signed and acknowledged by the [chairman] chair of the commission and the party affected. Any such assurance shall specify a time limit during which the discontinuance is to be accomplished."
SECTION 9. 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] A person who does not comply with the provisions of Section 74-6-5 NMSA 1978, including [any regulation] a rule adopted pursuant to that section or [any] a permit issued pursuant to that section, shall be assessed civil penalties up to the amount of [fifteen thousand dollars ($15,000)] thirty thousand dollars ($30,000) per day of noncompliance for each violation.
B. [Any] A person who violates [any] a provision of the Water Quality Act other than Section 74-6-5 NMSA 1978 or [any] a person who violates [any regulation] a rule, water quality standard or compliance order adopted pursuant to that act shall be assessed civil penalties up to the amount of [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) per day for each violation."
SECTION 10. 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 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] a 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] A 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)] ten thousand dollars ($10,000) for each day during which the violation, failure or refusal occurs."
SECTION 11. Section 74-9-36 NMSA 1978 (being Laws 1990, Chapter 99, Section 36) is amended to read:
"74-9-36. ENFORCEMENT--COMPLIANCE ORDERS.--
A. Whenever on the basis of any information the director determines that [any] a person has violated, is violating or threatens to violate [any] a requirement of the Solid Waste Act, [any regulation] a rule promulgated pursuant to that act or [any] a condition of a permit issued under that act, the director may:
(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or
(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.
B. [Any] An order issued pursuant to Subsection A of this section may include a suspension or revocation of [any] a permit issued by the director. [Any] A penalty assessed in the order shall not exceed [five thousand dollars ($5,000)] ten thousand dollars ($10,000) per day of noncompliance for each violation. In assessing such penalty, the director shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.
C. If a violator fails to take corrective action within the time specified in a compliance order, the director may:
(1) assess a civil penalty of not more than [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) for each day of continued noncompliance with the order; and
(2) suspend or revoke [any] a permit issued to the violator under the Solid Waste Act.
D. Whenever on the basis of any information the director determines that there is or has been a release of contaminants into the environment from a solid waste facility, the director may issue an order requiring corrective action, including corrective action beyond a solid waste facility's boundaries or such other response measure as [he] the director deems necessary to protect human health or the environment or may commence an action in district court in the district in which the solid waste facility is located for appropriate relief, including a temporary or permanent injunction.
E. [Any] An order issued under Subsection D of this section may include a suspension or revocation of a permit to operate a solid waste facility and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance. If [any] a person named in an order fails to comply with the order, the director may assess and such person shall be liable to the state for a civil penalty in an amount not to exceed [five thousand dollars ($5,000)] ten thousand dollars ($10,000) for each day of noncompliance with the order.
F. [Any] An order issued pursuant to this section, any other enforcement proceeding initiated under this section or [any] a claim for personal or property injury arising from [any] a conduct for which financial responsibility must be provided may be issued to or taken against the insuror or guarantor of an owner or operator of a solid waste facility if:
(1) the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the federal Bankruptcy Code; or
(2) jurisdiction in [any] a state or federal court cannot with reasonable diligence be obtained over an owner or operator likely to be solvent at the time of judgment.
G. [Any] An order issued pursuant to this section shall become final unless, no later than thirty days after the order is served, the [person or] persons named therein submit a written request to the director for a public hearing. Upon such request, the director shall promptly conduct a public hearing. The director shall appoint an independent hearing officer to preside over the public hearing. That hearing officer shall make and preserve a complete record of the proceedings and forward [his] a recommendation based thereon to the director, who shall make the final decision.
H. In connection with [any] a proceeding under this section, the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.
I. Penalties collected pursuant to an administrative order shall be deposited in the state treasury to be credited to the solid waste facility grant fund."
SECTION 12. Section 74-9-38 NMSA 1978 (being Laws 1990, Chapter 99, Section 38) is amended to read:
"74-9-38. PENALTY--CIVIL.--[Any] A person who violates [any] a provision of Section [31 of the Solid Waste Act] 74-9-31 NMSA 1978 or [any regulation] a rule adopted pursuant to that act may be assessed a civil penalty not to exceed [five thousand dollars ($5,000)] ten thousand dollars ($10,000) for each day during any portion of which a violation occurs. All civil penalties assessed and collected shall be deposited in the solid waste facility grant fund."
SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.
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