SENATE BILL 387
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Stephen H. Fischmann
AN ACT
RELATING TO THE ENVIRONMENT; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NATURAL RESOURCES TRUSTEE ACT; PROVIDING FOR ACTIONS TO RECOVER DAMAGES FOR INJURY TO NATURAL RESOURCES; PROVIDING FOR THE PROMULGATION OF RULES; PROVIDING LIMITATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] LEGISLATIVE FINDINGS.--The legislature finds that:
A. the natural resources of the state of New Mexico are assets of the state held in trust by the state for the benefit of the public;
B. the protection and the preservation of these natural resources promote the well-being of the people of this state in the present and the future;
C. the release of injurious substances into the environment of this state constitutes a threat to the natural resources and the well-being of the people of this state; and
D. the state should recover damages for injury to natural resources, regardless of whether such natural resources have been or may be used or committed to use at any time and regardless of whether the natural resources are at present capable of being used."
Section 2. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Natural Resources Trustee Act:
A. "injurious substance" means:
(1) any substance that is an air contaminant under the Air Quality Control Act;
(2) any substance identified or listed as a hazardous waste under the Hazardous Waste Act;
(3) any constituent listed by the federal environmental protection agency as a hazardous waste in 40 C.F.R., Part 261, Subpart D;
(4) any hazardous constituent identified in 40 C.F.R., Part 261, Appendix VIII;
(5) any solid waste exceeding the toxicity characteristics listed in Table 1 of 40 C.F.R. 261.24;
(6) any constituent identified in 40 C.F.R., Part 264, Appendix IX;
(7) any substance meeting the definition of hazardous chemical under the Hazardous Chemicals Information Act;
(8) any substance that is a water contaminant pursuant to the Water Quality Act;
(9) any substance that is a regulated substance pursuant to the Ground Water Protection Act;
(10) oil of any kind or in any form, including petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes;
(11) any solid waste or combination of solid wastes that because of its quantity, concentration or physical, chemical or infectious characteristics may:
(a) cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed; or
(12) any other substance that the trustee may by rule designate as an injurious substance based upon its toxicity, persistence and degradability in nature; potential for accumulation in tissue; and other related factors such as flammability, corrosiveness and other hazardous characteristics;
B. "natural resources" includes land; minerals; soils; sediments; geologic resources; air; surface waters; ground waters; drinking water supplies; aquifers; perennial, seasonal and ephemeral drainages; arroyos; watersheds; biota; fish; wildlife; supporting habitats; and vegetation;
C. "restoration" means those actions necessary to return an injured natural resource to its baseline condition as measured in terms of the injured natural resource's physical, chemical or biological properties and the services it previously provided; and
D. "trustee" means the natural resources trustee."
Section 3. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] LIABILITY FOR DAMAGES.--
A. Except as provided in Subsection E of this section, with respect to any facility from which there is an intentional or unintentional release of an injurious substance into the environment, including a release within the facility, the following persons shall be jointly and severally liable to the state for all damages resulting from the release:
(1) the owner or operator of the facility at the time of the release;
(2) any person who previously owned or operated the facility during a time in which the injurious substance was released, placed, disposed of or treated;
(3) any person who by agreement or otherwise arranged for release, placement, disposal or treatment of the injurious substance at the facility or arranged with a transporter for transport of the injurious substance to or from the facility whether or not the injurious substance was owned or possessed by the person; and
(4) any person who accepted the injurious substance for transport to a disposal or treatment facility or site selected by that person.
B. Damages owed to the state under this section include:
(1) damages for injury to natural resources, including the destruction or loss of natural resources;
(2) interim losses incurred after the release and before the completion of restoration;
(3) residual losses remaining after completion of restoration of the natural resources; and
(4) the reasonable costs of assessing the injury resulting from the release.
C. Damages owed to the state under this section may be recovered regardless of prospective or ongoing remediation efforts.
D. The amount of damages may be established by any methodology that demonstrates:
(1) the cost of restoration or rehabilitation of the injured natural resources to a condition where they can provide the level of services and resource value available before the release of the injurious substance;
(2) the cost of replacement or acquisition of equivalent natural resources capable of providing such services and resource value;
(3) the value of the services and resources lost to the public from the time of the release through the completion of the restoration, rehabilitation, replacement or acquisition of equivalent natural resources; and
(4) the cost of investigating, assessing and collecting damages and enforcing the state's rights.
E. There shall be no liability under this section for a release of an injurious substance if the release is in compliance with a license or permit duly issued by the state or the federal government and in effect at the time of the release."
Section 4. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] ACTION FOR DAMAGES--VENUE.--
A. The trustee, as plaintiff, may bring a suit on behalf of the state against any person who is liable, under the provisions of the Natural Resources Trustee Act, for damages caused by a release of an injurious substance, except that, before initiating suit, the trustee shall make reasonable efforts to conduct a cooperative assessment of the nature and extent of the damages and of methods to achieve resolution of the trustee's claim in cooperation with the responsible party and, upon initiating suit, the trustee shall certify that, in the trustee's judgment, the efforts have not succeeded in resolving the trustee's claims.
B. Venue shall be in the district court for Santa Fe county or in the district court for the county in which damages were sustained."
Section 5. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] DUAL RECOVERY PROHIBITED.--There shall be no dual recovery under the Natural Resources Trustee Act for damages to the same natural resources, including the costs of damage assessment or restoration, rehabilitation or acquisition, caused by the same release of injurious substances."
Section 6. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] LIMITATION ON ACTIONS.--No claim may be made under the Natural Resources Trustee Act for recovery of damages unless the claim is made before the later of the following:
A. five years after the date that the trustee became aware of the nature and extent of the release and the extent of injuries caused by the release; or
B. January 1, 2015."
Section 7. A new section of the Natural Resources Trustee Act is enacted to read:
"[NEW MATERIAL] PROMULGATION OF RULES.--
A. The trustee may adopt rules consistent with the Natural Resources Trustee Act as necessary to protect the natural resources of the state, including rules:
(1) defining and describing injurious substances;
(2) defining and describing the manner of proof of injury, damages and assessment costs; and
(3) prescribing procedures for assessing and establishing claims.
B. No rule shall be adopted until after a public hearing by the trustee or the trustee's designee. Notice of the hearing shall be given at least sixty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The proposed language amending any existing rule or any proposed new rule shall be made available to the public as of the date that the notice of the hearing is given. The notice shall also state where interested persons may secure copies of any proposed amendment or new rule. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request for advance notice of hearings.
C. At the hearing, the trustee or designee shall allow all interested persons reasonable opportunity to submit data, proposed changes to the proposed rule, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action on the rule.
D. No rule or amendment or repeal thereof shall become effective until thirty days after its filing under the State Rules Act.
E. Any person who is or may be affected by a rule adopted pursuant to this section may appeal to the district court for the county of Santa Fe for further relief. All appeals shall be upon the transcript made at the hearing and shall be taken to the district court within thirty days after filing of the rule under the State Rules Act. Upon appeal, the district court shall set aside the rule only if it is found to be:
(1) arbitrary, capricious or an abuse of discretion; or
(2) otherwise not in accordance with law."
Section 8. Section 75-7-2 NMSA 1978 (being Laws 1993, Chapter 292, Section 2, as amended) is amended to read:
"75-7-2. NATURAL RESOURCES TRUSTEE--OFFICE OF NATURAL RESOURCES TRUSTEE.--
A. The "natural resources trustee" is created. The trustee is appointed by and serves at the pleasure of the governor pursuant to the provisions of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the federal Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act, [and] any other applicable federal law and the provisions of the Natural Resources Trustee Act. The natural resources trustee shall act on behalf of the public as trustee of natural resources within the state or belonging to, managed by, controlled by or appertaining to the state, including protecting and representing the state's interest under applicable federal laws regarding injury to, destruction of or loss of natural resources in the state.
B. The "office of natural resources trustee" is created. The office shall be administratively attached to the department of environment. The administrative head of the office of natural resources trustee is the natural resources trustee. For purposes of this subsection, the term "administratively attached" means the same as specified in Section 9-1-7 NMSA 1978."
Section 9. Section 75-7-3 NMSA 1978 (being Laws 1993, Chapter 292, Section 3, as amended) is amended to read:
"75-7-3. NATURAL RESOURCES TRUSTEE POWERS AND DUTIES.--
A. The natural resources trustee shall take all actions necessary to carry out the responsibilities of the natural resources trustee as provided in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act, [and] any other applicable federal law and the Natural Resources Trustee Act, including the responsibility to:
(1) act on behalf of the public to protect New Mexico's natural resources by recovering damages for injury to, destruction of or loss of those resources;
(2) investigate injury to, destruction of or loss of natural resources;
(3) determine the amount and cause of injury to, destruction of or loss of natural resources;
(4) determine the liability of any person for injury to, destruction of or loss of natural resources;
(5) assess and collect damages for injury to, destruction of or loss of natural resources, including bringing legal actions and collecting the costs of assessing and collecting the damages; and
(6) expend money for the purposes set forth in the Natural Resources Trustee Act.
B. The natural resources trustee may:
(1) hire staff, in accordance with the Personnel Act, to carry out the provisions of the Natural Resources Trustee Act;
(2) contract with economists, consultants and other experts; and
(3) accept gifts and grants to carry out the provisions of the Natural Resources Trustee Act. Gifts and grants accepted by the natural resources trustee shall be deposited in the natural resources trustee fund. C. The attorney general shall provide legal counsel and representation to the natural resources trustee and the office of the natural resources trustee."
Section 10. Section 75-7-5 NMSA 1978 (being Laws 1993, Chapter 292, Section 5, as amended) is amended to read:
"75-7-5. NATURAL RESOURCES TRUSTEE FUND.--
A. The "natural resources trustee fund" is created in the state treasury. Money appropriated to the fund or accruing to it through gifts, grants, fees, penalties, bequests or any other source shall be delivered to the state treasurer and deposited in the fund. Money recovered for the state by or on behalf of the [natural resources] trustee shall be deposited in the natural resources trustee fund. The fund shall be administered by the [natural resources] trustee as a separate account and may consist of subaccounts that the [natural resources] trustee deems necessary to carry out the purposes of the fund. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the [natural resources] trustee or the trustee's designated representative. Money in the fund shall not revert to the general fund at the end of a fiscal year.
B. Pursuant to the following criteria, money in the natural resources trustee fund shall be used to carry out the provisions of the Natural Resources Trustee Act by restoring, replacing or acquiring natural resources [in an area where natural resources have been injured, destroyed or lost, provided that money deposited in the fund because of injury to, destruction of or loss of natural resources in an area shall be disbursed to restore, replace or acquire natural resources in that same area]:
(1) if an expenditure from the fund is necessary to comply with a court order or court-approved settlement or to match federal funds, then, pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, the [natural resources] trustee may request a budget increase and, if approved, the amount of the expenditure is appropriated;
(2) if money is received for reimbursement of assessment costs, then the [natural resources] trustee may expend money for injury assessment, and money is appropriated in that amount for that purpose; [and]
(3) any other expenditures from the fund shall be made only pursuant to appropriation by the legislature; and
(4) money deposited in the fund because of injury to, destruction of or loss of natural resources in an area shall be expended to restore, replace or acquire natural resources in that same area, provided that the trustee may undertake a restoration action outside the area where the natural resources were injured, destroyed or lost if, in the trustee's judgment, action within the area would be infeasible or ineffective.
C. In addition to expenditures made pursuant to Subsection B of this section, money shall be appropriated annually by the legislature from the general fund for the purpose of providing for necessary personnel and other costs of the [natural resources] trustee, the attorney general and the office of natural resources trustee in carrying out the provisions of the Natural Resources Trustee Act, including the cost of investigation, assessment, collection or enforcement.
D. For purposes of this section, "assessment
costs" means the costs of restoration and the costs of collecting, compiling and analyzing information, statistics or data to determine damages for injuries to natural resources pursuant to the Natural Resources Trustee Act.
E. Money in the natural resources trustee fund
shall be invested as other state funds are invested, and interest and earnings from the fund shall not revert to the general fund but shall be credited to the natural resources trustee fund."
Section 11. REPEAL.--Section 75-7-4 NMSA 1978 (being Laws 1993, Chapter 292, Section 4) is repealed.
Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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