HOUSE BILL 213

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

INTRODUCED BY

Paul C. Bandy

FOR THE GOVERNMENT RESTRUCTURING TASK FORCE

AN ACT

RELATING TO EXECUTIVE REORGANIZATION; ELIMINATING THE ENVIRONMENTAL IMPROVEMENT BOARD'S AUTHORITY TO ENACT RULES, ISSUE PERMITS OR LICENSES AND CONDUCT HEARINGS AND TRANSFERRING SUCH AUTHORITY TO THE DEPARTMENT OF ENVIRONMENT; TRANSFERRING LICENSING AUTHORITY UNDER THE MEDICAL IMAGING AND RADIATION THERAPY HEALTH AND SAFETY ACT FROM THE DEPARTMENT OF ENVIRONMENT TO THE DEPARTMENT OF HEALTH; TRANSFERRING THE POWERS AND DUTIES OF THE OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION TO THE DEPARTMENT OF ENVIRONMENT; ELIMINATING THE WATER QUALITY CONTROL COMMISSION'S AUTHORITY TO ENACT RULES AND TRANSFERRING SUCH AUTHORITY TO THE DEPARTMENT OF ENVIRONMENT; SPECIFYING MEMBERSHIP QUALIFICATIONS FOR THE WATER QUALITY CONTROL COMMISSION; TRANSFERRING THE POWERS AND DUTIES OF THE WASTEWATER TECHNICAL ADVISORY COMMITTEE TO THE DEPARTMENT OF ENVIRONMENT; ELIMINATING THE STORAGE TANK COMMITTEE, WASTEWATER TECHNICAL ADVISORY COMMITTEE, OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION, OCCUPATIONAL HEALTH AND SAFETY SPECIAL COMMITTEES AND FOOD SERVICE SANITATION ADVISORY COUNCIL; SUNSETTING ALL BOARDS AND COMMISSIONS ADDRESSING ENVIRONMENTAL ISSUES; PROVIDING FOR TRANSFERS OF FUNCTIONS, APPROPRIATIONS, MONEY, PROPERTY, CONTRACTUAL OBLIGATIONS AND REFERENCES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTIONS OF LAW IN LAWS 1991 AND 2000; RECONCILING CONFLICTING AMENDMENTS TO THE SAME SECTION OF LAW BY REPEALING LAWS 1991, CHAPTER 185, SECTION 2.

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

     SECTION 1. Section 25-1-2 NMSA 1978 (being Laws 1977, Chapter 309, Section 2, as amended) is amended to read:

     "25-1-2. DEFINITIONS.--As used in the Food Service Sanitation Act:

          A. ["agency" or "division"] "department" means the department of environment;

          B. "board" means the environmental improvement board;

          C. "employee" means any individual employed in a food service establishment who transports food or food containers, who handles food during storage, preparation or serving, who comes in contact with any utensils or who is employed in a room in which food is stored, prepared or served;

          D. "food" means any solid or liquid substance intended for human consumption by eating or drinking;

          E. "general public" includes beneficiaries of governmental feeding programs and private charitable feeding programs and residents and employees of institutions that provide meals to their residents and employees either with or without direct payment to the institution by the residents or employees;

          F. "temporary food service establishment" means a food service establishment that operates at a fixed location in conjunction with a single event or celebration for a short period of time not exceeding the event or celebration or not exceeding thirty days;

          G. "person" means an individual or any other legal entity;

          H. "food service establishment" means:

                (1) any fixed or mobile place where food is served and sold for consumption on the premises;

                (2) any fixed or mobile place where food is prepared for sale to or consumption by the general public either on or off the premises, including any place where food is manufactured for ultimate sale in a sealed original package, but "prepared" as used in this paragraph does not include the preparation of raw fruits, vegetables or pure honey for display and sale in a grocery store or similar operation. For purposes of this paragraph, "pure honey" means natural liquid or solid honey, extracted from the combs or in the comb, taken from beehives, with no processing or additional ingredients. "Food service establishment" does not mean a dairy establishment; and

                (3) meat markets, whether or not operated in conjunction with a grocery store;

          I. "utensil" means any implement used in the storage, preparation, transportation or service of food; and

          J. "dairy establishment" means a milk processing or milk producing facility."

     SECTION 2. Section 25-1-3 NMSA 1978 (being Laws 1977, Chapter 309, Section 3) is amended to read:

     "25-1-3. PURPOSE.--The purpose of the Food Service Sanitation Act is to protect the public health by establishing standards and provisions for the regulation of food service establishments and by appropriate delegations of authority to the [board and agency] department to adopt and enforce regulations covering the environmental health aspects of food service establishments to assure that consumers are not exposed to adverse environmental health conditions arising out of the operations of food service establishments."

     SECTION 3. Section 25-1-4 NMSA 1978 (being Laws 1977, Chapter 309, Section 4) is amended to read:

     "25-1-4. [BOARD] DEPARTMENT--POWERS AND DUTIES.--The [board] department shall promulgate procedural and substantive regulations consistent with the provisions of Section [12-12-13 NMSA 1953] 74-1-9 NMSA 1978 and shall include provisions for:

          A. requiring food service establishments to prepare and serve food in a manner safe for human consumption, free from adulteration, spoilage, contamination and unwholesomeness, and, to accomplish this standard, the following areas of food service establishment operations shall be covered by the regulations:

                (1) disease control;

                (2) employee hygiene and sanitation;

                (3) food service establishment premises sanitation;

                (4) all aspects of food service establishment construction relating to food service sanitation, including requirements for food service establishment construction plans and specifications review and approval by the [agency] department;

                (5) control of pests and infestation by pests;

                (6) lavatory and toilet facility placement and sanitation;

                (7) lavatory hygiene;

                (8) food equipment and utensil design and construction;

                (9) food equipment and utensil storage and handling;

                (10) liquid and solid waste disposal;

                (11) food and drink preparation, handling, display and storage;

                (12) food service establishment ventilation;

                (13) water supply;

                (14) itinerant food service establishment construction and operation; and

                (15) any other facet of food service operations that reasonably may be considered to pose an existing or potential hazard to the health of the consuming public;

          B. the issuance, suspension and revocation of permits required under the Food Service Sanitation Act, which regulations shall provide for prior notice to and a hearing for any applicant for or holder of a permit when the [agency proposed] department-proposed action is to deny an application for or suspend or revoke a permit, except in those specified instances under the provisions of the Food Service Sanitation Act when the [agency] department is authorized to take any of the foregoing actions without prior notice and hearing; and

          C. establishing requirements for inspections of food service establishments, which shall include provisions for inspections at a frequency of at least once every twelve months."

     SECTION 4. Section 25-1-5 NMSA 1978 (being Laws 1977, Chapter 309, Section 5, as amended) is amended to read:

     "25-1-5. OPTIONAL POWERS.--

          A. The board may establish a system of grading food service establishments for the purpose of certifying compliance with the Food Service Sanitation Act and regulations requiring food service establishments to display in a designated manner a grade as notice of compliance to the public. Such regulations shall include provisions for the revocation and reinstatement of the permit that are consistent with due process of law.

          B. The board shall establish a schedule of fees for the issuance and renewal of permits issued by the [division] department under the Food Service Sanitation Act. The board shall set the schedule of fees so that no fee established by such schedule shall be less than one hundred dollars ($100) or more than two hundred dollars ($200) annually for a food service establishment with not more than a twenty-five-dollar ($25.00) incremental increase per fiscal year. The board shall establish a separate schedule of fees not to exceed twenty-five dollars ($25.00) per single event or celebration per temporary food service establishment. Fees shall be waived for all temporary non-potentially hazardous food service operations, for any temporary food service establishment operating no more than two calendar days in any calendar month and for any food service establishment that provides food to the general public at no charge. Fees collected for the issuance and renewal of permits pursuant to the Food Service Sanitation Act shall be deposited in the food service sanitation fund."

     SECTION 5. Section 25-1-5.1 NMSA 1978 (being Laws 1993, Chapter 100, Section 5, as amended) is amended to read:

     "25-1-5.1. FOOD SERVICE SANITATION FUND.--The "food service sanitation fund" is created in the state treasury, and money in the fund is subject to appropriation by the legislature to the department of environment for the purpose of paying the costs of administering [regulations promulgated by the board to carry out] the provisions of the Food Service Sanitation Act."

     SECTION 6. Section 25-1-6 NMSA 1978 (being Laws 1977, Chapter 309, Section 6) is amended to read:

     "25-1-6. [AGENCY] DEPARTMENT--POWERS AND DUTIES.--

          A. The [agency] department is authorized and has the duty to execute any provisions of the Food Service Sanitation Act delegated to it under that act or by the board under authority of that act and specifically is directed to administer and enforce the provisions of regulations adopted under it.

          B. The [director of the agency] department may appoint an advisory council composed of food service technicians to assist in carrying out the objectives of the Food Service Sanitation Act."

     SECTION 7. Section 25-1-7 NMSA 1978 (being Laws 1977, Chapter 309, Section 7, as amended) is amended to read:

     "25-1-7. PERMITS--PERMIT REQUIRED--APPLICATION--REVOCATION--SUSPENSION.--

          A. No person may operate a food service establishment unless [he] the person possesses a valid and unsuspended permit issued by the [agency] department in accordance with the Food Service Sanitation Act and the regulations adopted under it. The permit shall be posted in a conspicuous place within the food service establishment. No person may display a permit unless it has been issued to [him] the person by the [agency] department and has not been revoked and is not under suspension.

          B. Any person desiring to operate a food service establishment shall apply to the [agency] department for the issuance of a permit. Applications shall be made in a form and in accordance with procedures established by regulations of the [board] department. The [agency] department shall issue a permit to any applicant that complies with the regulations of the [board] department covering the issuance of permits and who demonstrates to the satisfaction of the [agency his] department the ability to comply with all the provisions of the Food Service Sanitation Act and all regulations of the [board] department applicable to [his] the applicant's proposed food service establishment operation.

          C. The [board] department shall promulgate regulations for the revocation or suspension of permits for those food service establishments [which] that fail to come into compliance with a provision of the Food Service Sanitation Act or regulation promulgated under it. No permit shall be suspended or revoked under the provisions of this subsection unless there have been repeated violations of the same standard and without first providing the operator of a food service establishment an opportunity for [an agency] a department hearing. The hearing officer shall not be any person previously involved in the suspension or revocation action. No inspection made more than twenty-four months prior to the most recent [such] inspection shall be used as a basis for suspension or revocation."

     SECTION 8. Section 25-1-8 NMSA 1978 (being Laws 1977, Chapter 309, Section 8) is amended to read:

     "25-1-8. INSPECTION BY [AGENCY] DEPARTMENT.--

          A. The [agency] department shall inspect food service establishments to determine compliance or lack of compliance with the Food Service Sanitation Act and regulations of the [board] department. The procedures for inspection shall be in accordance with regulations of the [board] department. Upon request by the [agency] department to a food service establishment operator or to [his] an employee or agent in charge of the food service establishment premises, [he] the operator shall permit the [agency] department official, upon proper identification, to enter the premises, inspect all parts of the premises and inspect and copy any records of food purchases by the food service establishment. The operator or [his] an employee or agent in charge of the food service establishment premises shall be given an opportunity to accompany the [agency] department official on [his] the inspection and, as soon as possible after the inspection, a report of the inspection shall be furnished to [him] the operator. Refusal to allow an inspection is grounds for revocation of the permit of the operator, provided that the [agency] department official has tendered proper identification prior to the refusal.

          B. During an inspection, the [agency] department may take samples of food and other substances found on the premises for the purpose of determining compliance with provisions of the Food Service Sanitation Act and regulations of the [board] department."

     SECTION 9. Section 25-1-9 NMSA 1978 (being Laws 1977, Chapter 309, Section 9) is amended to read:

     "25-1-9. IMMEDIATE SUSPENSION OF PERMIT BY [AGENCY] DEPARTMENT.--The [agency] department may suspend a permit immediately without prior notice to the holder of the permit if it determines, after inspection, that conditions within a food service establishment present a substantial danger of illness, serious physical harm or death to consumers who might patronize the food service establishment. A suspension action taken under this section is effective when communicated to the food service establishment operator or any employee or agent of the operator who is in charge of the premises involved. If there is no designated employee or agent in charge of the premises, communication to any employee physically present on the premises is sufficient communication to make the suspension effective. No suspension action taken under this section shall continue beyond the time that the conditions causing the suspension cease to exist, as determined by an inspection by the [agency] department at the request of the food service operator."

     SECTION 10. Section 25-1-10 NMSA 1978 (being Laws 1977, Chapter 309, Section 10) is amended to read:

     "25-1-10. PROCEEDING UNDER NEW MEXICO FOOD ACT AUTHORIZED WHEN ADULTERATED OR MISBRANDED FOOD FOUND DURING INSPECTION.--Whenever, during an inspection authorized under the Food Service Sanitation Act, the [agency] department finds or has probable cause to believe that any food on the food service establishment premises is adulterated or so misbranded as to be dangerous or fraudulent within the meaning of the New Mexico Food Act, it may proceed immediately to have the food detained, embargoed, destroyed or condemned under the provisions of Section [54-1-6 NMSA 1953] 25-2-6 NMSA 1978."

     SECTION 11. Section 25-1-11 NMSA 1978 (being Laws 1977, Chapter 309, Section 11, as amended) is amended to read:

     "25-1-11. JUDICIAL REVIEW OF [BOARD AND DIVISION] DEPARTMENT ACTIONS.--

          A. Rules adopted by the [board] department are subject to judicial review under the provisions of Section 74-1-9 NMSA 1978.

          B. Any person to whom the [division] department denies a permit or whose permit is suspended or revoked by the division may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

     SECTION 12. Section 25-1-12 NMSA 1978 (being Laws 1977, Chapter 309, Section 12) is amended to read:

     "25-1-12. ENFORCEMENT.--

          A. The [agency] department may seek relief in district court to enjoin the operation of any food service establishment not complying with the Food Service Sanitation Act or any regulation adopted under that act.

          B. In addition to granting injunctive relief, the district court may impose a civil penalty not exceeding five hundred dollars ($500) on any person who violates any provision of the Food Service Sanitation Act. Each [and every] violation of the provisions of that act [shall constitute] constitutes a separate offense."

     SECTION 13. A new section of the Food Service Sanitation Act is enacted to read:

     "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the department in carrying out the objectives of the Food Service Sanitation Act, including advising the department on permit applications and regulations adopted pursuant to that act and other duties as determined by the department."

     SECTION 14. Section 25-2-1 NMSA 1978 (being Laws 1951, Chapter 169, Section 1) is amended to read:

     "25-2-1. SHORT TITLE.--[This Act] Chapter 25, Article 2 NMSA 1978 may be cited as the "New Mexico Food Act"."

     SECTION 15. Section 25-2-2 NMSA 1978 (being Laws 1951, Chapter 169, Section 2, as amended) is amended to read:

     "25-2-2. DEFINITIONS.--For the purpose of the New Mexico Food Act:

          A. "board" means the environmental improvement board;

          B. "dairy establishment" means a milk processing or milk producing facility;

          C. "department" or "division" means the department of environment;

          D. "director" means the secretary of environment or [his] the secretary's authorized representative;

          E. "person" includes an individual, partnership, corporation and association;

          F. "food" means:

                (1) articles used for food or drink for [man] people or animals;

                (2) chewing gum; and

                (3) articles used for components of food or drink or chewing gum for [man] people or animals;

          G. "label" means a display of written, printed or graphic matter upon the immediate container of any article. A requirement made by or under authority of the New Mexico Food Act that any word, statement or other information appear on the label shall not be considered to be complied with unless such word, statement or other information also appears on the outside container or wrapper, if any, of the retail package of such article or is easily legible through the outside container or wrapper;

          H. "immediate container" does not include package liners;

          I. "labeling" means all labels and other written, printed or graphic matter:

                (1) upon an article or any of its containers or wrappers; or

                (2) accompanying such article;

          [J. if an article is alleged to be misbranded because the labeling is misleading or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual;

          K.] J. "advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or [which] that are likely to induce, directly or indirectly, the purchase of food;

          [L.] K. "contaminated with filth" applies to any food not securely protected from dust, dirt and, so far as may be necessary by all reasonable means, from all foreign or injurious contaminations, or any food found to contain any dust, dirt, foreign or injurious contamination or infestation; and

          [M. the provisions shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession and holding of any such article and the supplying or applying of any such articles in the conduct of any food establishment; and

          N.] L. "federal act" means the Federal Food, Drug, and Cosmetic Act, [21 USC § 301 et seq.] the Federal Meat Inspection Act [21 USC § 601 et seq.] and the federal Poultry

Products Inspection Act [21 USC § 451 et seq]."

     SECTION 16. Section 25-2-3 NMSA 1978 (being Laws 1951, Chapter 169, Section 3) is amended to read:

     "25-2-3. PROHIBITED ACTS.--

          A. The following acts and the causing thereof within the state [of New Mexico] are [hereby] prohibited:

                [(a)] (1) the manufacture, sale or delivery or holding or offering for sale of any food that is adulterated or misbranded;

                [(b)] (2) the adulteration or misbranding of any food;

                [(c)] (3) the receipt in commerce of any food that is adulterated or misbranded and the delivery or proffered delivery [thereof] of the adulterated or misbranded food for pay or otherwise;

                [(d)] (4) the sale, delivery for sale, holding for sale or offering for sale of any article in violation of Section [12] 25-2-12 NMSA 1978;

                [(e)] (5) the dissemination of any false advertisement;

                [(f)] (6) the refusal to permit entry or inspection or to permit the taking of a sample as authorized by Section [16] 25-2-16 NMSA 1978;

                [(g)] (7) the giving of a guaranty or undertaking, which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by and containing the name and address of the person residing in the state [of New Mexico] from whom [he] the person received the food in good faith;

                [(h)] (8) the removal or disposal of a detained or embargoed article in violation of Section [6]

25-2-6 NMSA 1978;

                [(i)] (9) the alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food if such act is done while [such] the article is held for sale and results in [such] the article being misbranded; and

             [(j)] (10) forging, counterfeiting, simulating or falsely representing or without proper authority using any mark, stamp, tag, label or other identification device authorized or required by regulations promulgated under the provisions of [this] the New Mexico Food Act.

         B. If an article is alleged to be misbranded because the labeling is misleading or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences that may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual.

         C. The prohibitions in this section shall apply equally to the manufacture, production, processing, packing, exposure, offer, possession and holding of adulterated or misbranded food by any food establishment."

    SECTION 17. Section 25-2-9 NMSA 1978 (being Laws 1951, Chapter 169, Section 9, as amended) is amended to read:

    "25-2-9. PROMULGATION OF DEFINITIONS AND STANDARDS BY THE [BOARD] DEPARTMENT.--

         A. Whenever in the judgment of the [board] department such action will promote honesty and fair dealing in the interest of consumers, the [board] department shall promulgate regulations fixing and establishing for any food or class of food a reasonable definition and standard of identity or reasonable standard of quality or fill of container or any combination of such requirements. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the [board] department shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients [which] that shall be named on the label. The definitions and standards [so] promulgated shall conform so far as practicable to the definitions and standards promulgated under the authority of the federal act.

         B. In promulgating regulations pursuant to this section, the [board] department shall follow the procedures set forth in Section 74-1-9 NMSA 1978."

    SECTION 18. Section 25-2-11 NMSA 1978 (being Laws 1951, Chapter 169, Section 11) is amended to read:

    "25-2-11. FOOD DEEMED MISBRANDED.--A food shall be deemed to be misbranded:

         [(a)] A. if its labeling is false or misleading in any particular;

         [(b)] B. if it is offered for sale under the name of another food;

         [(c)] C. if it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;

         [(d)] D. if its container is so made, formed or filled as to be misleading;

         [(e)] E. if in package form, unless it bears a label containing:

             (1) the name and place of business of the manufacturer, packer or distributor; or

             (2) an accurate statement of the quantity of the contents in terms of weight, measure or numerical count; provided that, [under clause (2) of] pursuant to this paragraph, reasonable variations shall be permitted and exemptions as to small packages shall be established by regulations prescribed by the [board] department;

         [(f)] F. if any word, statement or other information required by or under authority of [this] the New Mexico Food Act to appear on the label or labeling is not prominently placed [thereon] with such conspicuousness, as compared with other words, statements, designs or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

         [(g)] G. if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by Section [9] 25-2-9 NMSA 1978 unless:

             (1) it conforms to such definition and standard; and

             (2) its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring and coloring, present in such food;

         [(h)] H. if it purports to be or is represented as:

             (1) a food for which a standard of quality has been prescribed by regulations as provided by Section [9] 25-2-9 NMSA 1978 and its quality falls below [such] that standard unless its label bears in such manner and form as [such] the regulations specify a statement that it falls below [such] the standard; or

             (2) a food for which a standard [or standards] of fill of container [have] has been prescribed by regulation as provided by Section [9] 25-2-9 NMSA 1978 and it falls below the standard of fill of container applicable [thereto] to it, unless its label bears in such manner and form as [such] the regulations specify a statement that it falls below [such] the standard;

         [(i)] I. if it is not subject to the provisions of [paragraph (g)] Subsection G of this section, unless it bears labeling clearly giving:

             (1) the common or usual name of the food, if any [there be]; and

             (2) in case it is fabricated from two or more ingredients, the common or usual name of each [such] ingredient, except that spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each; provided that to the extent that compliance with the requirements of [clause (2) of] this paragraph is impractical or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the [board] department; and provided further that the requirements of [Clause (2) of] this paragraph shall not apply to any carbonated beverage, the ingredients of which have been fully and correctly disclosed in an affidavit filed with the [board] department;

         [(j)] J. if it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the [board] department determines to be, and by regulations [prescribed] prescribes as, necessary in order to fully inform purchasers as to its value for such uses; and

         [(k)] K. if it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this [paragraph] subsection is impracticable, exemptions shall be established by regulations promulgated by the [board] department."

    SECTION 19. Section 25-2-12 NMSA 1978 (being Laws 1951, Chapter 169, Section 12, as amended) is amended to read:

    "25-2-12. MANUFACTURING, PACKING AND PROCESSING PERMITS FOR CERTAIN CLASSES OF FOOD--SUSPENSION--INSPECTIONS.--

         A. Whenever the [board] department finds after investigation that the distribution in New Mexico of any class of food may, by reason of contamination with microorganisms during manufacture, processing or packing [thereof] in any locality, be injurious to health and that such injurious nature cannot be adequately determined after [such] the articles have entered commerce, [it] the department then and in such case only shall promulgate regulations providing for the issuance, by the director to manufacturers, processors or packers of such class of food in such locality, of permits to which shall be attached such conditions governing the manufacture, processing or packing of such class of food for such temporary period of time as may be necessary to protect the public health, and after the effective date of [such] the regulations and during [such] the temporary period, no person shall introduce or deliver for introduction into commerce any such food manufactured, processed or packed by any such manufacturer, processor or packer unless [such] the manufacturer, processor or packer holds a permit issued by the director as provided by such regulations. In promulgating regulations pursuant to this section, the [board] department shall follow the procedures set forth in Section 74-1-9 NMSA 1978.

         B. The director is authorized to suspend immediately upon notice any permit issued under authority of this section if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended shall be privileged at any time to apply for the reinstatement of [such] the permit, and the director shall, immediately after prompt hearing and an inspection of the establishment, reinstate [such] the permit if it is found that adequate measures have been taken to comply with and maintain the conditions of the permit as originally issued or as amended.

         C. The director shall have access to any factory or establishment, the operator of which holds a permit from the director, for the purpose of ascertaining whether or not the conditions of the permit are being complied with, and denial of access for [such] inspection shall be ground for suspension of the permit until [such] access is freely given by the operator."

    SECTION 20. Section 25-2-13 NMSA 1978 (being Laws 1951, Chapter 169, Section 13, as amended) is amended to read:

    "25-2-13. PROMULGATING REGULATIONS GOVERNING THE ADDITION OF ANY POISONOUS OR DELETERIOUS SUBSTANCES IN FOOD.--

         A. Any poisonous or deleterious substance added to any food, except where [such] the substance is required in [the] production [thereof] or cannot be avoided by good manufacturing practice, shall be deemed to be unsafe for purposes of the application of Paragraph (2) of Subsection A of Section 25-2-10 NMSA 1978; but when [such] the substance is [so] required or cannot be [so] avoided, the [board] department shall promulgate regulations limiting the quantity therein or thereon to such extent as the [board] department finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for [purpose] purposes of the application of Paragraph (2) of Subsection A of Section 25-2-10 NMSA 1978. While such a regulation is in effect limiting the quantity of any such substance in the case of any food, [such] the food shall not, by reason of bearing or containing any added amount of [such] the substance, be considered to be adulterated within the meaning of Paragraph (1) of Subsection A of Section 25-2-10 NMSA 1978. In determining the quantity of [such] the added substance to be tolerated in or on different articles of food, the [board] department shall take into account the extent to which the use of [such] the substance is required or cannot be avoided in the production of each [such] article and the other ways in which the consumer may be affected by the same or other poisonous or deleterious substances.

         B. In promulgating regulations pursuant to this section, the [board] department shall follow the procedure set forth in Section 74-1-9 NMSA 1978."

    SECTION 21. Section 25-2-15 NMSA 1978 (being Laws 1951, Chapter 169, Section 15, as amended) is amended to read:

    "25-2-15. PROMULGATING REGULATIONS--PROCEDURE.--

         A. The authority to promulgate regulations for the efficient enforcement of the New Mexico Food Act is [hereby] vested in the [board] department. The [board] department is [hereby] authorized to make the regulations promulgated under the federal act.

         B. In promulgating regulations pursuant to this section, the board shall assist the department, and the department shall follow the procedures set forth in Section 74-1-9 NMSA 1978."

    SECTION 22. Section 25-5-1 NMSA 1978 (being Laws 1955, Chapter 244, Section 1, as amended) is amended to read:

    "25-5-1. DEFINITIONS.--As used in the Flour and Bread Act, unless the context otherwise requires:

         A. "flour" means foods commonly known in the milling and baking industries [as] and:

             (1) includes:

                  (a) white flour, also known as wheat flour or plain flour;

                  [(2)] (b) bromated flour;

                  [(3)] (c) self-rising flour, also known as self-rising white flour or self-rising wheat flour; and

                  [(4)] (d) phosphated flour, also known as phosphated white flour or phosphated wheat flour; [but] and

             (2) excludes whole wheat flour and [also excludes] special flours not used for bread, roll, bun or biscuit baking, such as specialty cake, pancake and pastry flours;

         B. "white bread" means any bread made with flour as defined in Subsection A of this section, whether baked in a pan or on a hearth or screen, [which] that is commonly known or usually represented and sold as white bread, including Vienna bread, French bread and Italian bread;

         C. "rolls" includes plain white rolls and buns of the semi-bread dough type, namely: soft rolls such as hamburger rolls, hot dog rolls and Parker House rolls and hard rolls such as Vienna rolls and Kaiser rolls, but [shall] does not include yeast-raised sweet rolls or sweet buns made with fillings or coatings such as cinnamon rolls or buns and butterfly rolls;

         D. "board" means the environmental improvement board;

         E. "director" means the [director of the division] secretary of environment or [his] the secretary's authorized representative;

         F. "division" means the [environmental improvement division of the health and] department of environment [department]; and

         G. "person" means an individual, corporation, partnership, association, joint stock company, trust or any group of persons, whether incorporated or not, engaged in the commercial manufacture or sale of flour, white bread or rolls."

    SECTION 23. Section 25-5-1.1 NMSA 1978 (being Laws 1982, Chapter 73, Section 15) is amended to read:

    "25-5-1.1. SHORT TITLE.--[Sections 25-5-l through 25-5-9] Chapter 25, Article 5 NMSA 1978 may be cited as the "Flour and Bread Act"."

    SECTION 24. Section 25-5-2 NMSA 1978 (being Laws 1955, Chapter 244, Section 2) is amended to read:

    "25-5-2. MANUFACTURE OR SALE OF UNENRICHED FLOUR UNLAWFUL.--

         A. It [shall be] is unlawful for any person to manufacture, mix, compound, sell or offer for sale for human consumption in this state flour [(as defined in Section 1)] unless the following vitamins and minerals are contained in each pound of [such] the flour: not less than two milligrams and not more than two and one-half milligrams of thiamine; not less that one and two-tenths milligrams and not more than one and one-half milligrams of riboflavin; not less than sixteen milligrams and not more than twenty milligrams of niacin or niacin-amide; and not less than thirteen milligrams and not more than sixteen and one-half milligrams of iron (Fe); except in the case of self-rising flour [which] that, in addition to the above ingredients, shall contain not less than five hundred milligrams and not more than fifteen hundred milligrams of calcium (Ca); provided, however, that the terms of this section shall not apply to flour sold to distributors, bakers or other processors if the purchaser furnishes to the seller a certificate in such form as the [board shall] division by regulation [prescribe] prescribes certifying that [such] the flour will be:

             (1) resold to a distributor, baker or other processor; [or]

             (2) used in the manufacture, mixing or compounding of flour, white bread or rolls enriched to meet the requirements of [this] the Flour and Bread Act; or

             (3) used in the manufacture of products other than flour, white bread or rolls.

         B. It [shall be] is unlawful for any such purchaser so furnishing any such certificate to use or resell the flour [so] purchased in any manner other than as prescribed in this section."

    SECTION 25. Section 25-5-4 NMSA 1978 (being Laws 1955, Chapter 244, Section 4, as amended) is amended to read:

    "25-5-4. DIVISION--DUTY TO ENFORCE.--The division is [hereby] charged with the duty of enforcing the provisions of the Flour and Bread Act [and rules, regulations and orders of the board promulgated pursuant to the Flour and Bread Act]."

    SECTION 26. Section 25-5-5 NMSA 1978 (being Laws 1955, Chapter 244, Section 5, as amended) is amended to read:

    "25-5-5. [BOARD] DIVISION--REVISION OF REQUIREMENTS.--

         A. Whenever the vitamin and mineral requirements set forth in Sections 25-5-2 and 25-5-3 NMSA 1978 are no longer in conformity with the legally established standards governing the interstate shipment of enriched flour and enriched white bread or enriched rolls, the [board] division, in order to maintain uniformity between intrastate and interstate vitamin and mineral requirements for the foods within the provisions of the Flour and Bread Act, is authorized and directed to modify or revise such requirements to conform with amended standards governing interstate shipments.

         B. In promulgating regulations pursuant to this section, the [board] division shall follow the procedures set forth in Section 74-1-9 NMSA 1978."

    SECTION 27. Section 25-5-6 NMSA 1978 (being Laws 1955, Chapter 244, Section 6, as amended) is amended to read:

    "25-5-6. [BOARD] DIVISION--POWER TO ADJUST IN CASE OF SHORTAGE.--

         A. In the event of findings by the [board] division that there is an existing or imminent shortage of any ingredient required by Section 25-5-2 or 25-5-3 NMSA l978 and that because of [such] the shortage the sale and distribution of flour or white bread or rolls may be impeded by the enforcement of the Flour and Bread Act, the [board] division shall issue an order, to be effective immediately upon issuance, permitting the omission of [such] the ingredient from flour or white bread or rolls and, if it finds it necessary or appropriate, excepting such foods from labeling requirements until the further order of the [board] division. Any such findings may be made without hearings on the basis of an order or of factual information supplied by the appropriate federal agency or officer. In the absence of any such order of the appropriate federal agency or factual information supplied by it, the [board] division on its own motion may, and upon receiving the sworn statements of ten or more persons subject to the Flour and Bread Act that they believe [such] a shortage exists or is imminent shall, within twenty days [thereafter] hold a public hearing with respect [thereto] to the shortage, at which any interested person may present evidence, and shall make findings based upon the evidence presented. The [board] division shall publish notice of [any such] the hearing at least ten days prior [thereto] to the hearing.

         B. Whenever the [board] division has reason to believe that [such] the shortage no longer exists, it shall hold a public hearing, after at least ten days' notice [shall have] has been given, at which any interested person may present evidence, and it shall make findings based upon the evidence [so] presented. If [its findings be] the division finds that [such] the shortage no longer exists, it shall issue an order to become effective not less than thirty days after publication [thereof] revoking [such] the previous order; provided, however, that undisposed of floor stocks of flour on hand at the effective date of [such] the revocation order or flour manufactured prior to [such] the effective date for sale in this state may thereafter be lawfully sold or disposed of.

         C. In conducting hearings pursuant to this section, the [board] division shall follow the procedures set forth in Section 74-1-9 NMSA 1978, except for the number of days' notice required for [such] the hearing."

    SECTION 28. Section 25-5-7 NMSA 1978 (being Laws 1955, Chapter 244, Section 7) is amended to read:

    "25-5-7. PUBLICATION OF REGULATIONS.--All orders, rules and regulations adopted by the [board] division pursuant to [this] the Flour and Bread Act shall be published at least twice in at least one daily newspaper of general circulation printed and published in this state and shall become effective upon such date after publication as the [board shall fix] division fixes."

    SECTION 29. Section 25-5-9 NMSA 1978 (being Laws 1955, Chapter 244, Section 9) is amended to read:

    "25-5-9. PENALTY.--Any person who violates any of the provisions of [this] the Flour and Bread Act or the orders, rules or regulations promulgated by the [board] division under authority [thereof, shall] of that act, upon conviction, [thereof be subjected] is subject to fine for each [and every] offense in a sum not exceeding five hundred dollars [($500.00)] ($500) or to imprisonment not to exceed ninety days."

    SECTION 30. A new section of the Flour and Bread Act is enacted to read:

    "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the division in carrying out the objectives of the Flour and Bread Act, including advising the division on regulations enacted pursuant to that act and other duties as determined by the division."

    SECTION 31. Section 50-9-1 NMSA 1978 (being Laws 1972, Chapter 63, Section 1, as amended) is amended to read:

    "50-9-1. SHORT TITLE.--[Sections 50-9-1 through 50-9-25] Chapter 50, Article 9 NMSA 1978 may be cited as the "Occupational Health and Safety Act"."

    SECTION 32. Section 50-9-3 NMSA 1978 (being Laws 1972, Chapter 63, Section 3, as amended) is amended to read:

    "50-9-3. DEFINITIONS.--As used in the Occupational Health and Safety Act:

         A. "person" means any individual, partnership, firm, public or private corporation, association, trust, estate, political subdivision or agency or any other legal entity or [their] its legal representatives, agents or assigns;

         B. "employee" means an individual who is employed by an employer but does not include a domestic employee or a volunteer nonsalaried firefighter;

         C. "employer" means any person who has one or more employees but does not include the United States;

         D. "board" means the environmental improvement board;

         E. "department" means the department of environment;

         F. "place of employment" means any place, area or environment in or about which an employee is required or permitted to work;

         [G. "commission" means the occupational health and safety review commission established under the Occupational Health and Safety Act;

         H.] G. "chemical" means any element, chemical compound or mixture of elements or compounds;

         [I.] H. "hazardous chemical" means any chemical or combination of chemicals that has been labeled hazardous by the chemical manufacturer, importer or distributor in accordance with regulations promulgated by the federal Occupational Safety and Health Act of 1970;

         [J.] I. "label" means any written, printed or graphic material displayed on or affixed to containers of chemicals [which] that identifies the chemical as hazardous;

         [K.] J. "material safety data sheet" means written or printed material concerning a hazardous chemical and that contains information on the identity listed on the label, the chemical and common names of the hazardous ingredients, the physical and health hazards, the primary route of entry, the exposure limits, any generally applicable control measures, any emergency or first aid procedures, the date of preparation and the name, address and telephone number of the chemical manufacturer, importer, employer or other responsible party preparing or distributing the material safety data sheet;

         [L.] K. "mobile work site" means any place of employment in standard industrial classification codes 13, oil and gas extraction, and 15 through 17, construction, where work is performed in a different location than the principal office in a fixed location used by the employer; and

         [M.] L. "secretary" means the secretary of environment."

    SECTION 33. Section 50-9-5 NMSA 1978 (being Laws 1972, Chapter 63, Section 5, as amended) is amended to read:

    "50-9-5. EMPLOYER AND EMPLOYEE DUTIES.--

         A. Every employer shall furnish to each of [his] the employer's employees employment and a place of employment [which] that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [his] the employees.

         B. Every employer shall furnish and maintain a place of employment that must comply with the health and safety regulations promulgated by the [board] department. The regulations shall provide for the adoption of practices, means, methods, operations, conditions and processes in order to provide safe and healthful employment and places of employment.

         C. Each employer shall, through posting of notices at the place or places where notices to employees are normally posted or other appropriate means, keep [his] employees informed of their protections and obligations under the Occupational Health and Safety Act, including provisions of applicable regulations.

         D. Each employee shall comply with the provisions of the Occupational Health and Safety Act and any rules and orders promulgated pursuant thereto [which] that are applicable to [his] the employee's own actions and conduct in the course of [his] employment."

    SECTION 34. Section 50-9-5.1 NMSA 1978 (being Laws 1987, Chapter 178, Section 3) is amended to read:

    "50-9-5.1. EMPLOYER DUTIES--HAZARDOUS CHEMICALS.--

         A. All incoming containers labeled as hazardous shall be subject to this section. The employer shall not remove or deface any label [which] that indicates on an incoming container that a chemical is hazardous, unless the container is immediately marked with the required information.

         B. Each employer shall obtain and maintain material safety data sheets for each chemical used in [his] the place of employment and labeled as hazardous. Each employer shall ensure that the information on material safety data sheets for hazardous chemicals is readily accessible to employees during each work shift. The [board] department shall promulgate regulations [which] that assure reasonable compliance with this provision at mobile work sites. If a material safety data sheet has not been supplied from the manufacturer, importer or distributor of the hazardous chemical, the employer shall obtain the material safety data sheet by writing the manufacturer, importer or distributor and requesting that [he send] the material safety data sheet be sent immediately.

         C. Each employer shall maintain a current inventory of all chemicals that have been labeled as hazardous in [his] the place of employment.

         D. Each employer shall develop and implement a written hazard communication program for [his] the place of employment [which] that describes how the criteria specified for labels and other forms of warning, material safety data sheets and employee information and training will be met and [which] that also includes the following:

             (1) a list of the hazardous chemicals known to be present, using an identity that is referenced on the appropriate material safety data sheet. The list may be compiled for the place of employment as a whole or for individual work areas;

             (2) the methods the employer will use to inform employees of the hazards of nonroutine tasks, for example, the cleaning of reactor vessels and the hazards associated with chemicals contained in unlabeled pipes in their work areas; and

             (3) the methods the employer will use to inform any contract employers whose employees work in the employer's place of business of the hazardous chemicals their employees may be exposed to while performing their work and any suggestions for appropriate protective measures.

    The employer may rely on an existing hazard communication program to comply with these requirements provided that it meets the provisions of this subsection. The employer shall make the written hazard communication program available upon request to employees, their designated representatives and the occupational health and safety bureau of the [environmental improvement division of the health and environment] department.

         E. Each employer shall provide employees with information and training on hazardous chemicals they use or may become exposed to during the course of employment.

         F. The requirements of Subsection E of this section [shall] do not apply to any hazardous chemical received by an employer in a sealed package or container and subsequently sold or transferred if the seal is maintained.

         G. Nothing in this section shall supersede any other requirements in the Occupational Health and Safety Act."

    SECTION 35. Section 50-9-6 NMSA 1978 (being Laws 1972, Chapter 63, Section 6, as amended) is amended to read:

    "50-9-6. TRAINING--ASSISTANCE--CONSULTATION--RESEARCH.--

         A. The department shall provide for the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance and prevention of unsafe working conditions in employment and places of employment and consult with, advise and assist employers and employees about effective means of preventing occupational injuries and illnesses.

         B. Upon an employer's request, the department shall provide an on-site consultation inspection of conditions and practices of the employer's work place without issuing citations or proposing penalties for violations noted, provided that imminent danger situations found during the on-site consultative visit [must] shall be pointed out to the employer. In the event the imminent danger is pointed out by the department consultant but immediate steps are not taken by the employer to eliminate [such] the danger, the emergency procedures provided in Section 50-9-14 NMSA 1978 shall be pursued by the department to assure timely abatement of the imminent danger situation.

         C. The secretary is responsible for programs involving research in occupational health and safety, for surveys and recommendations for occupational health and safety programs and for promotional, educational and advisory activities in occupational health and safety.

         [D. The board or the secretary may appoint special committees composed of technicians or professionals specializing in occupational health or safety to assist in carrying out the objectives of the Occupational Health and Safety Act. Members of such committees shall be reimbursed as provided in the Per Diem and Mileage Act.]"

    SECTION 36. Section 50-9-7 NMSA 1978 (being Laws 1972, Chapter 63, Section 7, as amended) is amended to read:

    "50-9-7. DUTIES AND POWERS OF THE [BOARD] DEPARTMENT.--

         A. The [board] department shall promulgate regulations that are and will continue to be at least as effective as standards promulgated pursuant to the federal Occupational Safety and Health Act of 1970 to prevent or abate detriment to the health and safety of employees. In adopting, amending and repealing its regulations, the [board] department shall provide an opportunity for representatives of employers and employees affected by the regulations to be heard and shall give weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to:

             (1) character and degree of injury to or interference with the health and safety of employees proposed to be abated or prevented by the regulation;

             (2) technical practicability and economic reasonableness of the regulation and the existence of alternatives to the prevention or abatement of detriment to the health and safety of employees proposed by the regulation; and

             (3) the public interest, including the social and economic effects of work-related accidents, injuries and illnesses.

         B. In promulgating regulations dealing with toxic materials or harmful physical agents, the [board] department shall provide regulations that most adequately assure to the extent feasible, on the basis of the best available technology, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard dealt with by the regulations for a period of [his] the employee's working life. Whenever practicable, the regulation promulgated shall be expressed in terms of objective criteria and of the performance desired.

         C. The regulation shall prescribe the use of labels or other appropriate forms of warning as are necessary to [insure] ensure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment and proper conditions and precautions of safe use or exposure. Where appropriate, the standard shall also prescribe suitable protective equipment and control or technological procedures to be used in connection with the hazards and shall provide for monitoring or measuring employee exposure at such locations and intervals and in such manner as may be necessary for the protection of employees. In addition, where appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests [which] that shall be made available, by the employer or at [his] the employer's cost, to employees exposed to the hazards in order to most effectively determine whether the health of the employees is adversely affected by the exposure. Cost of medical examinations for research as ordered by the secretary shall be paid for by the department. Results of examinations shall be made available to the secretary, to the employer and, upon the request of the employee, to the employee's physician. The [board] department may make appropriate modifications in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or measuring and medical examinations as may be warranted by experience, information or medical or technological developments acquired subsequent to the promulgation of the relevant standard.

         D. The department shall conduct hearings as required under the Occupational Health and Safety Act. The department is authorized to enact such rules as are necessary for the orderly transaction of its hearings. When conducting hearings, the department may:

             (1) order testimony to be taken by deposition;

             (2) compel any person whose testimony may be material to appear and testify and to produce books, papers, documents or other like documentary evidence; and

             (3) designate a hearing officer to take evidence in the hearing; in such case, the department shall make its decision based on the evidence in the transcript of the hearing proceedings."

    SECTION 37. Section 50-9-8 NMSA 1978 (being Laws 1972, Chapter 63, Section 8, as amended) is amended to read:

    "50-9-8. ADDITIONAL DUTIES AND POWERS OF THE DEPARTMENT.--The department shall:

         A. prevent or abate detriment to the health and safety of employees arising out of and in the course of employment;

         B. develop an effective and comprehensive program for the prevention or abatement of detriment to the health and safety of employees within the state;

         C. advise and recommend an effective and comprehensive program of occupational health and safety applicable to all employees of public agencies of the state and its political subdivisions;

         D. cause to be instituted legal proceedings to compel compliance with the Occupational Health and Safety Act [or any regulation of the board];

         E. accept, receive and administer grants or other funds or gifts from public or private agencies, including the federal government;

         F. take reasonable steps to inform employees of their protections and obligations under the Occupational Health and Safety Act, including the provisions of applicable regulations; and

         G. make reports to the secretary of the United States department of labor in the form and containing the information as [the] that secretary may from time to time require."

    SECTION 38. Section 50-9-10 NMSA 1978 (being Laws 1972, Chapter 63, Section 9, as amended) is amended to read:

    "50-9-10. RIGHT OF ENTRY AND INSPECTION--COMPLAINTS--CONSULTATION--NOTIFICATION.--

         A. In order to carry out the purposes of the Occupational Health and Safety Act, the department's authorized representatives, upon presenting appropriate credentials to the owner, operator or agent in charge, are authorized to and may:

             (1) enter and inspect any place of employment at reasonable times and without delay; and

             (2) question privately the employer and employees and to inspect and investigate during regular working hours and at other reasonable times and within reasonable limits and in a reasonable manner, the place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein. The department's representative is not authorized to question privately the employer or employees until the [board] department has adopted regulations protecting the rights of [such] the employer and employees.

         B. Any employee or representative of employees may file a written complaint with the department concerning any alleged violation of a regulation or any hazardous condition. A copy of the complaint shall be provided to the employer at the time of the inspection. However, upon the request of the complainant, the complainant's name shall not appear on the copy. The department shall investigate the complaint and notify the complainant and employer in writing of the results of the investigation and any action to be taken. If no action is contemplated, the department shall notify the complainant and include in the notice the reasons therefor. The department shall provide for the informal review of decisions not to take compliance action at the request of the complainant. The review shall not be by those who investigated the complaint.

         C. In order to aid inspections, a representative of the employer and a representative authorized by employees shall be given an opportunity to accompany the department inspector during the physical inspection of the work place. If there is no authorized employee representative, the department inspector shall consult with a reasonable number of employees.

         D. Prior to or during any inspection of a work place, any employees or representative of employees employed in [such] the work place may notify the department or the department inspector in writing of any violation of the Occupational Health and Safety Act [which] that they have reason to believe exists in [such] the work place. The department shall establish procedures for informal review of the decision made by the inspector, and, if no citation is issued with respect to the alleged violation, it shall furnish the employee requesting [such] the review a written statement of the reasons for the department's final disposition of the case.

         E. If an inspection reveals that employees are exposed to toxic materials or harmful physical agents at levels in excess of those prescribed by regulations of the [board] department, the department shall provide the employees with access to the results of the inspection. The employer shall promptly notify the employees who are being exposed to the agents or materials in excess of the applicable regulations and inform them of the corrective action being taken or that review has been requested in accordance with Section 50-9-17 NMSA 1978.

         F. It is unlawful for any person to give advance notice of any inspection to be conducted under the Occupational Health and Safety Act without the written approval of the secretary or the secretary's authorized representative.

         G. The [board] department shall adopt regulations to implement this section."

    SECTION 39. Section 50-9-11 NMSA 1978 (being Laws 1972, Chapter 63, Section 10, as amended) is amended to read:

    "50-9-11. REPORTS AND RECORDKEEPING BY EMPLOYERS.--

         A. An employer shall keep such records and make such reports to the department as [the board] required by regulation [may require] to carry out the purposes of the Occupational Health and Safety Act. [Such] The regulation regarding records and reports shall be at least as effective as and consistent with the occupational safety and health record and report requirements of the United States department of labor. These records and reports shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.

         B. Employers shall maintain accurate records of employee exposures to potentially toxic material or harmful physical agents [which] that are required to be monitored or measured as the [board] department may prescribe by regulations. Employees and their representatives shall be given an opportunity to observe [such] the monitoring and measuring. Employees and former employees shall be granted access to their own records as will indicate their own exposure to toxic material or harmful agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or levels that exceed those prescribed by an applicable regulation adopted pursuant to the Occupational Health and Safety Act and shall inform any employee who is being thus exposed of the corrective action being taken. Employers shall retain the records of exposure of employees to specific toxic material and harmful agents for periods of time to be specified in regulations."

    SECTION 40. Section 50-9-12 NMSA 1978 (being Laws 1972, Chapter 63, Section 11, as amended) is amended to read:

    "50-9-12. ADOPTION OF REGULATIONS--NOTICE AND HEARING.--

         A. Any person may recommend or propose regulations to the [board] department for promulgation. The [board] department shall determine whether to hold a hearing within sixty days of submission of a proposed regulation.

         B. No regulations shall be adopted, amended or repealed until after a public hearing by the [board] department. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, time and place of the hearing and the manner in which interested persons may secure copies of any regulations proposed to be adopted, amended or repealed. The notice shall be published in a newspaper of general circulation in the state. Reasonable effort shall be made to give notice to all persons who have made a written request to the [board] department for advance notice of hearings. At the hearing, the [board] department shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing. Any person heard or represented at the hearing shall be given written notice of the action by the [board] department. The [board] department may designate a hearing officer to take evidence in the hearing and present the evidence to the [board] department. A record shall be made of each hearing.

         C. Notwithstanding the provisions of Subsection B of this section, the secretary may adopt an emergency regulation to take immediate effect upon its filing under the State Rules Act if the secretary determines:

             (1) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and

             (2) that the emergency regulation is necessary to protect employees from the danger.

         D. The emergency regulation shall be effective until superseded by a final regulation promulgated in accordance with the procedures prescribed in Subsection B of this section. The final regulation shall be promulgated within one hundred twenty days of the date of promulgation of the relevant emergency regulation.

         E. If the emergency regulation is promulgated in response to an emergency temporary standard issued pursuant to the federal Occupational Safety and Health Act of 1970, [then such] the emergency regulation shall only be enforceable to the same extent as the federal emergency temporary standard.

         F. If the federal emergency temporary standard is superseded by a federal permanent standard, [then] the state emergency regulation shall remain in effect for an additional one hundred twenty days after promulgation of the superseding standard. During this additional one hundred twenty days, the [board] department shall promulgate a regulation in accordance with the procedures prescribed in Subsection B of this section."

    SECTION 41. Section 50-9-13 NMSA 1978 (being Laws 1972, Chapter 63, Section 12, as amended) is amended to read:

    "50-9-13. ADOPTING STANDARDS BY REFERENCE.--In the event the [board] department wishes to adopt regulations that are identical with standards approved by an agency of the federal government, the [board] department, after notice and hearing, may adopt the regulations by reference to the standards without setting forth the provisions of the standards."

    SECTION 42. Section 50-9-15 NMSA 1978 (being Laws 1972, Chapter 63, Section 14, as amended) is amended to read:

    "50-9-15. VALIDITY OF REGULATION--VARIANCE

DETERMINATION--JUDICIAL REVIEW.--

         A. [Any] Except for those regulations adopted by reference pursuant to the provisions of Section 50-9-13 NMSA 1978, a person who is or may be affected by a [regulation] rule adopted by the [board] department may appeal to the court of appeals for further relief. All appeals shall be upon the record made at the hearing and shall be taken to the court of appeals within thirty days after filing of the [regulation] rule pursuant to the State Rules Act. The [board] department shall be made a party to the action.

         B. Upon appeal, the court of appeals shall set aside a [regulation] rule 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. A variance petitioner may appeal to the district court from an order of the department denying the variance. The appeal shall be filed pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

    SECTION 43. Section 50-9-17 NMSA 1978 (being Laws 1972, Chapter 63, Section 16, as amended) is amended to read:

    "50-9-17. ENFORCEMENT--APPEALS.--

         A. If as a result of investigation the department has good cause to believe that [any] an employer is violating [any] a provision of the Occupational Health and Safety Act or [any] a rule of the [board] department, the department shall send prompt notice of the violation by certified mail to the employer believed to be in violation. The citation shall describe with particularity the provision of the Occupational Health and Safety Act or rule alleged to have been violated. The notice shall also state the time for abatement of the violation. Each citation issued pursuant to this section, or a copy thereof, shall be promptly and prominently posted by the cited employer, as prescribed in rules issued by the [board] department, at or near the place where the violation occurred. No citation may be issued under this section after the expiration of six months following the occurrence of any violation. The [board] department may issue a [regulation] rule prescribing procedures for the use of a notice in lieu of a citation with respect to de minimis violations that have no direct or immediate relationship to safety or health.

         B. If the department issues a citation as provided in Subsection A of this section, it shall, within a reasonable time after issuance of the citation, notify the employer by certified mail of the penalty, if any, proposed to be assessed and that the employer has fifteen working days within which to notify the department in writing that [he] the employer wishes to contest the citation or proposed penalty. If within fifteen working days from the receipt of the notice issued by the department the employer fails to notify the department that [he] the employer intends to contest the citation or proposed penalty and no notice is filed by an employee or employee representative as provided by Subsection D of this section within that time, the citation and the assessment of penalty, if any, as proposed shall be deemed the final order of the [commission] department and not subject to review by any court or agency.

         C. If the department has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the abatement period permitted, which period shall not begin to run until the entry of a final order by the [commission] department in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties, the department shall notify the employer by certified mail of the failure to correct and of the penalty proposed to be assessed by reason of the failure and that the employer has fifteen working days within which to notify the department in writing that [he] the employer wishes to contest the department's notification or the proposed assessment of penalty. If within fifteen working days from the receipt of notification issued by the department the employer fails to notify the department that [he] the employer intends to contest the notification or proposed assessment of penalty, the notification and assessment as proposed shall be deemed a final order of the [commission] department and not subject to review by any court [or department].

         D. If [any] an employer notifies the department in writing that [he] the employer intends to contest the citation issued to [him] the employer pursuant to provisions of Subsection A of this section or notification issued pursuant to provisions of Subsection B or C of this section, or if within fifteen working days of the receipt of notice pursuant to the provisions of this section any employee of an employer cited or any employee's representative files a notice with the department alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the department shall provide prompt opportunity for informal administrative review. If the matter is not successfully resolved at the informal administrative review, the petitioner may request a hearing before the [commission] department within fifteen days after the administrative review. The [commission] department shall afford an opportunity for a hearing within thirty days after receipt of the petition. The [commission] department shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the department's citation or the proposed penalty fixed by the department or directing other appropriate relief.

          E. At any time prior to the expiration of an abatement period, an employer may notify the department in writing that [he] the employer is unable to take the corrective action required within the period of abatement. The department shall provide prompt opportunity for informal administrative review. If the matter is not successfully resolved at the informal administrative review, the petitioner may request a hearing before the [commission] department after the administrative review. The [commission] department shall afford prompt opportunity for a hearing after receipt of the petition. The only grounds for modifying an abatement period provided by this subsection are a showing by the employer of a good-faith effort to comply with the abatement requirement of a citation and that abatement has not been completed because of factors beyond the employer's control.

         F. Affected employees or their representatives shall be provided an opportunity to participate as parties at both informal administrative review and [commission] department hearings provided for in this section.

         G. Any person [including the department] adversely affected by an order of the [commission] department issued pursuant to provisions of this section may obtain a review of the order in the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

    SECTION 44. Section 50-9-19 NMSA 1978 (being Laws 1972, Chapter 63, Section 18, as amended) is amended to read:

    "50-9-19. ACCIDENT REPORTS AND RECORDS.--

         A. Every employer shall keep records and submit reports of occupational injuries and illnesses as prescribed by the department. Reports shall not require employee identification by name.

         B. The department shall publish annually a detailed summary of the statistical data received from employers. The department shall make a copy of [such] the summary available on request to each employer, and the summary shall be made available upon request to any person having an interest in the report. In the preparation, publication or release of the statistical summary, the department shall not in any manner disclose information identifying any employer unless prior permission has been obtained from the employer in writing. The reports of each employer shall remain confidential and shall not be released, revealed or otherwise disclosed to any person other than the bureau of labor statistics and the occupational safety and health administration of the United States department of labor without prior permission of the employer unless pursuant to an administrative hearing of the [board] department or an order of a court of competent jurisdiction."

    SECTION 45. Section 50-9-22 NMSA 1978 (being Laws 1972, Chapter 63, Section 21, as amended) is amended to read:

    "50-9-22. PREEMPTION.--

         A. Nothing in the Occupational Health and Safety Act shall affect the jurisdiction of any state agency or any political subdivision performing like functions or exercising like responsibilities with regard to occupational health and safety matters except as provided in Subsection B or C of this section.

         B. Whenever the [board] department prescribes or adopts a regulation under the procedures provided in the Occupational Health and Safety Act, the regulation shall, when a copy thereof is filed with the clerk of the political subdivision to which it applies, establish a minimum requirement concerning the matters covered by the regulation and shall be construed in connection with any local requirement relative to the same matter. The regulation of the [board] department amends or modifies any requirement of the local standard [which] that does not meet the regulation.

         C. The Occupational Health and Safety Act and regulations promulgated under it, and not the acts and regulations enforced by the state mine inspector, shall apply to places of employment subject to the jurisdiction of the United States department of labor acting under the provisions of the federal Occupational Safety and Health Act of 1970 (84 Stat. 1590), as amended.

         D. Compliance with a regulation of the [board] department does not relieve any person from the obligation to comply with a stricter state agency or political subdivision health or safety requirement, but the state agency or political subdivision shall be responsible for the enforcement of the health and safety requirements established by that state agency or local authority."

    SECTION 46. Section 50-9-23 NMSA 1978 (being Laws 1972, Chapter 63, Section 22, as amended) is amended to read:

    "50-9-23. LIMITATION ON APPLICABILITY OF THE ACT TO CERTAIN EMPLOYERS AND THEIR EMPLOYEES.--The Occupational Health and Safety Act and regulations promulgated under it do not apply to a specific activity of an employer or to a specific occupational health or safety condition of [his] the employer's employees if the specific activity or specific occupational health or safety condition is subject to the jurisdiction of and is regulated by:

         A. any federal agency except the United States department of labor acting under the provisions of the federal Occupational Safety and Health Act of 1970 (84 Stat. 1590); or

         B. the [board] department pursuant to the agreement specified in Section 74-3-15 NMSA 1978."

    SECTION 47. Section 50-9-24 NMSA 1978 (being Laws 1975, Chapter 290, Section 14, as amended) is amended to read:

    "50-9-24. PENALTIES.--

         A. Any employer who willfully or repeatedly violates any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act may be assessed a civil penalty not to exceed seventy thousand dollars ($70,000) for each violation; provided that a civil penalty shall not be less than five thousand dollars ($5,000) for each willful violation.

         B. Any employer who has received a citation for a serious violation of any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act shall be assessed a civil penalty not to exceed seven thousand dollars ($7,000) for each [such] violation.

         C. Any employer who has received a citation for a violation of any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act that is determined not to be of a serious nature may be assessed a civil penalty of up to seven thousand dollars ($7,000) for each [such] violation.

         D. Any employer who fails to correct a violation for which a citation has been issued within the period permitted for its correction, which period shall not begin to run until the date of the final order of the [commission] department in the case of any review proceeding [under] provided for in Section 50-9-17 NMSA 1978 initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty not to exceed seven thousand dollars ($7,000) for each day during which the failure or violation continues.

         E. Any civil penalty assessed against the state, a political subdivision of the state or any agency of either pursuant to Subsection B, C or G of this section shall not be collected during the time permitted for correction of the violation, and if the violation is corrected within such time, the civil penalty shall be deemed paid without further action of the state, political subdivision or agency.

         F. For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists or from one or more practices, means, methods, operations or processes that have been adopted or are in use in the place of employment unless the employer did not and could not with the exercise of reasonable diligence know of the presence of the violation.

         G. Any employer who violates any of the posting requirements as prescribed by the Occupational Health and Safety Act shall be assessed a civil penalty not to exceed seven thousand dollars ($7,000) for each violation.

         H. The [commission] department has authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.

         I. Civil penalties imposed [under] pursuant to provisions of this section shall be paid into the general fund.

         J. Any employer who willfully violates any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act causing death to any employee by that violation shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) or by imprisonment for not more than six months or by both; except that if the conviction is for a violation committed after a first conviction of [such] the person, punishment shall be by a fine of not more than twenty thousand dollars ($20,000) or by imprisonment for less than one year or by both.

         K. Any person who gives advance notice of any inspection to be conducted under the Occupational Health and Safety Act without authority of the secretary shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than six months or by both.

         L. Whoever knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to the Occupational Health and Safety Act shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) for each such violation or by imprisonment for not more than six months or by both.

         M. A person who reveals a trade secret in violation of Section 50-9-21 NMSA 1978 violates this subsection and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) or by imprisonment for less than one year or both."

    SECTION 48. A new section of the Occupational Health and Safety Act is enacted to read:

    "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the department in carrying out the objectives of the Occupational Health and Safety Act, including advising the department on the adoption and implementation of rules adopted pursuant to that act, variance applications and duties as determined by the department."

    SECTION 49. Section 61-14E-4 NMSA 1978 (being Laws 1983, Chapter 317, Section 4, as amended) is amended to read:

    "61-14E-4. DEFINITIONS.--As used in the Medical Imaging and Radiation Therapy Health and Safety Act:

         A. "advisory council" means the medical imaging and radiation therapy advisory council;

         [B. "board" means the environmental improvement board;

         C.] B. "certificate of limited practice" means a certificate issued pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act to persons who perform restricted diagnostic radiography under direct supervision of a licensed practitioner limited to the following specific procedures:

             (1) the viscera of the thorax;

             (2) extremities;

             (3) radiation to humans for diagnostic purposes in the practice of dentistry;

             (4) axial/appendicular skeleton; or

             (5) the foot, ankle or lower leg;

         [D.] C. "certified nurse practitioner" means a person licensed pursuant to Section 61-3-23.2 NMSA 1978;

         [E.] D. "credential" or "certification" means the recognition awarded to an individual who meets the requirements of a credentialing or certification organization;

         [F.] E. "credentialing organization" or "certification organization" means a nationally recognized organization recognized by the [board] department that issues credentials or certification through testing or evaluations that determine whether an individual meets defined standards for training and competence in a medical imaging modality;

         [G.] F. "department" means the department of [environment] health;

         [H.] G. "diagnostic medical sonographer" means a person, including a vascular technologist or echocardiographer, other than a licensed practitioner, who provides patient care services using ultrasound;

         [I. "division" means the environmental health division of the department of environment;

         J.] H. "ionizing radiation" means alpha particles, beta particles, gamma rays, x-rays, neutrons, high-speed electrons, high-speed protons and other particles capable of producing ions; "ionizing radiation" does not include non-ionizing radiation, such as sound waves, radio waves or microwaves, or visible, infrared or ultraviolet light;

         [K.] I. "license" means a document issued by the department pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act to an individual who has met the requirements of licensure;

         [L.] J. "licensed practitioner" means a person licensed to practice medicine, dentistry, podiatry, chiropractic or osteopathy in this state;

         [M.] K. "licensure" means a grant of authority through a license or limited license to perform specific medical imaging and radiation therapy services pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act;

         [N.] L. "magnetic resonance technologist" means a person other than a licensed practitioner who performs magnetic resonance procedures under the supervision of a licensed practitioner using magnetic fields and radio frequency signals;

         [O.] M. "medical imaging" means the use of substances or equipment emitting ionizing or non-ionizing radiation on humans for diagnostic or interventional purposes; 

         [P.] N. "medical imaging modality" means:

             (1) diagnostic medical sonography and all of its subspecialties;

             (2) magnetic resonance imaging and all of its subspecialties;

             (3) nuclear medicine technology and all of its subspecialties;

             (4) radiation therapy and all of its subspecialties; and

             (5) radiography and all of its subspecialties;

         [Q.] O. "medical imaging professional" means a person who is a magnetic resonance technologist, radiographer, nuclear medicine technologist or diagnostic medical sonographer and who is licensed pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act;

         [R.] P. "non-ionizing radiation" means the optical radiations, including ultraviolet, visible, infrared and lasers, static and time-varying electric and magnetic fields and radio frequency, including microwave radiation and ultrasound;

         [S.] Q. "nuclear medicine technologist" means a person other than a licensed practitioner who applies radiopharmaceutical agents to humans for diagnostic or therapeutic purposes under the direction of a licensed practitioner;

         [T.] R. "physician assistant" means a person licensed pursuant to Section 61-6-7 or 61-10A-4 NMSA 1978;

         [U.] S. "radiation therapy" means the application of ionizing radiation to humans for therapeutic purposes;

         [V.] T. "radiation therapy technologist" means a person other than a licensed practitioner whose application of radiation to humans is for therapeutic purposes;

         [W.] U. "radiographer" means a person other than a licensed practitioner whose application of radiation to humans is for diagnostic purposes;

         [X.] V. "radiography" means the application of radiation to humans for diagnostic purposes, including adjustment or manipulation of x-ray systems and accessories, including image receptors, positioning of patients, processing of films and any other action that materially affects the radiation dose to patients;

         [Y.] W. "radiologist" means a licensed practitioner certified by the American board of radiology, the [British] royal college of radiology, the American osteopathic board of radiology or the American chiropractic board of radiology; and

         [Z.] X. "radiologist assistant" means an individual licensed as a radiographer as defined in the Medical Imaging and Radiation Therapy Health and Safety Act who holds additional certification as a registered radiologist assistant by the American registry of radiologic technologists and who works under the supervision of a radiologist; provided that a radiologist assistant shall not interpret images, render diagnoses or prescribe medications or therapies."

    SECTION 50. Section 61-14E-5 NMSA 1978 (being Laws 1983, Chapter 317, Section 5, as amended) is amended to read:

    "61-14E-5. [BOARD] DEPARTMENT--POWERS--DUTIES.--

         A. The [board] department shall, pursuant to the advice and recommendations of the advisory council and following the procedures set forth in Subsection E of Section

[74-1-9] 9-7-6 NMSA 1978:

             [A.] (1) adopt and promulgate such rules [regulations] and licensure standards as may be necessary to effectuate the provisions of the Medical Imaging and Radiation Therapy Health and Safety Act and to maintain high standards of practice as verified by credentialing organizations for medical imaging and radiation therapy; and

             [B.] (2) adopt rules [and regulations] establishing continuing education requirements as a condition of licensure renewal for the purpose of protecting the health and well-being of the citizens of New Mexico and promoting current knowledge and practice as verified by credentialing organizations for medical imaging and radiation therapy.

         B. The department, pursuant to the rules promulgated under Subsection A of the section, shall:

             (1) maintain and enforce licensure standards for magnetic resonance, radiography, radiation therapy technology, nuclear medicine technology, diagnostic medical sonography and radiology and licensure standards for restricted diagnostic radiography;

             (2) refer to national educational accreditation standards for educational programs and, pursuant to those standards, establish criteria for education programs of magnetic resonance, radiography, radiation therapy technology, nuclear medicine technology and diagnostic medical sonography;

             (3) provide for surveys of educational programs preparing persons for certification under the Medical Imaging and Radiation Therapy Health and Safety Act;

             (4) grant, deny or withdraw approval from educational programs for failure to meet prescribed standards;

             (5) establish procedures for examination, certification and renewal of certificates of applicants; and

             (6) establish scope of practice and ethics rules."

    SECTION 51. A new section of the Medical Imaging and Radiation Therapy Health and Safety Act is enacted to read:

    "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The medical imaging and radiation therapy advisory council is terminated on July 1, 2017 pursuant to the provisions of the Sunset Act. The council shall continue to operate according to the provisions of Section 61-14E-5.1 NMSA 1978 until July 1, 2018. Effective July 1, 2018, Section 61-14E-5.1 NMSA 1978 is repealed."

    SECTION 52. Section 61-33-2 NMSA 1978 (being Laws 1992, Chapter 44, Section 2, as amended) is amended to read:

    "61-33-2. DEFINITIONS.--As used in the Utility Operators Certification Act:

         A. "certified operator" means a person who is certified by the department as being qualified to operate one of the classifications of public water supply systems or public wastewater facilities;

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

         C. "department" means the department of environment;

         D. "domestic liquid waste" means human excreta and water-carried waste from typical residential plumbing fixtures and activities, including waste from toilets, sinks, bath fixtures, clothes or dishwashing machines and floor drains;

         E. "domestic liquid waste treatment unit" means any system that is designed to discharge less than two thousand gallons per day and that is subject to rules promulgated by the [environmental improvement board] department pursuant to [Paragraph (3) of Subsection A of] Section [74-1-8] 74-1-7 NMSA 1978 or a watertight unit designed, constructed and installed to stabilize only domestic liquid waste and to retain solids contained in such domestic liquid waste, including septic tanks;

         F. "operate" means performing any activity, function, process control decision or system integrity decision regarding water quality or water quantity that has the potential to affect the proper functioning of a public water supply system or public wastewater facility or to affect human health, public welfare or the environment;

         G. "person" means any agency, department or instrumentality of the United States and any of its officers, agents or employees, the state or any agency, institution or political subdivision thereof, any public or private corporation, individual, partnership, association or other entity, and includes any officer or governing or managing body of any political subdivision or public or private corporation;

         H. "public wastewater facility" means a system of structures, equipment and processes designed to collect and treat domestic and industrial waste and dispose of the effluent, but does not include:

             (1) any domestic liquid waste treatment unit; or

             (2) any industrial facility subject to an industrial pretreatment program regulated by the United States environmental protection agency under the requirements of the federal Clean Water Act of 1977; and

         I. "public water supply system" means:

             (1) a system for the provision through pipes or other constructed conveyances to the public of water for human consumption or domestic purposes if the system:

                  (a) has at least fifteen service connections; or

                  (b) regularly serves an average of at least twenty-five individuals at least sixty days of the year; and

             (2) includes any water supply source and any treatment, storage and distribution facilities under control of the operator of the system."

    SECTION 53. Section 61-33-4 NMSA 1978 (being Laws 1973, Chapter 394, Section 4, as amended) is amended to read:

    "61-33-4. POWERS AND DUTIES OF [COMMISSION] DEPARTMENT.--The [commission] department may adopt rules relating to the administration and enforcement of the Utility Operators Certification Act. The [commission] department shall:

         A. adopt rules that classify public water supply systems and public wastewater facilities based on:

             (1) size and type of system or facility;

             (2) capacity of the system or facility based on the size of the serviced area and the number and size of the users to be served;

             (3) type and character of the water or wastewater to be treated; and

             (4) physical conditions affecting the treatment plants, collection systems and distribution systems;

         B. adopt rules providing standards and criteria for the certification of operators based on their qualifications and their ability to operate public water supply systems or public wastewater facilities of the various classifications;

         C. appoint a seven-member board from certified operators to function with the [commission] department to establish qualifications of operators, classify public water supply systems and public wastewater facilities [adopt rules and advise the department on the administration of the Utility Operators Certification Act] and advise the department on such matters. Two board members selected by the board shall sit as commission members on matters to which [that] the Utility Operators Certification Act is applicable;

         D. adopt and file under the State Rules Act rules necessary to carry out the provisions of the Utility Operators Certification Act; and

         E. adopt rules providing criteria for identifying the minimum number of certified operators needed to operate the various classifications of public water supply systems or public wastewater facilities in order to protect human health, public welfare or the environment."

    SECTION 54. Section 61-33-9 NMSA 1978 (being Laws 1973, Chapter 394, Section 9, as amended) is amended to read:

    "61-33-9. VARIANCE PROCEDURES.--

         A. The [commission] department shall establish by regulation a variance procedure for public water supply system and public wastewater facility operating authorities.

         B. Any variance procedure established by the [commission] department shall not allow an operating authority more than six months to obtain the service of a certified operator, except the [commission] department may give a variance not to exceed eighteen months if the operator in charge is involved in a training course that will bring [his] the operator's level of competency to the level required within the eighteen-month period."

    SECTION 55. Section 71-8-1 NMSA 1978 (being Laws 2007, Chapter 34, Section 1) is amended to read:

    "71-8-1. SHORT TITLE.--[This act] Chapter 71, Article 8 NMSA 1978 may be cited as the "Sustainable Development Testing Site Act"."

    SECTION 56. Section 71-8-6 NMSA 1978 (being Laws 2007, Chapter 34, Section 6) is amended to read:

    "71-8-6. EXPIRATION OF TESTING SITE PERMITS.--Upon the expiration of the term of a testing site permit or any renewal thereof:

         A. all activities within the area of the sustainable development testing site shall comply with all applicable laws, ordinances or rules, including permitting requirements; and

         B. the permittee may provide the wastewater treatment and disposal technologies to the [wastewater technical advisory committee] department of environment for review and, if appropriate, for listing by the department [of environment] as approved for use."

    SECTION 57. Section 72-4A-1 NMSA 1978 (being Laws 2001, Chapter 164, Section 1) is amended to read:

    "72-4A-1. SHORT TITLE.--[This act] Chapter 72, Article 4A NMSA 1978 may be cited as the "Water Project Finance Act"."

    SECTION 58. A new section of the Water Project Finance Act is enacted to read:

    "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The water trust board is terminated on July 1, 2013 pursuant to the provisions of the Sunset Act. The board shall continue to operate according to the provisions of Sections

72-4A-4 and 72-4A-5 NMSA 1978 until July 1, 2014. Effective July 1, 2014, Sections 72-4A-4 and 72-4A-5 NMSA 1978 are repealed."

    SECTION 59. Section 74-1-5 NMSA 1978 (being Laws 1971, Chapter 277, Section 6, as amended) is amended to read:

    "74-1-5. ENVIRONMENTAL IMPROVEMENT BOARD--DUTIES.--The board shall [promulgate all regulations applying to persons and entities outside of the department] be advisory to the department in carrying out the objectives of the Environmental Improvement Act."

    SECTION 60. Section 74-1-6 NMSA 1978 (being Laws 1971, Chapter 277, Section 9, as amended) is amended to read:

    "74-1-6. DEPARTMENT--POWERS.--The department shall have power to:

         A. sue and be sued;

         B. make contracts to carry out its delegated duties;

         C. enter into agreements with environmental and consumer protection agencies of other states and the federal government pertaining to duties of the department;

         D. enter into investigation and remediation agreements with persons potentially responsible for sites within New Mexico subject to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and such agreements shall not duplicate or take any authority from the oil conservation commission;

         E. serve as agent of the state in matters of environmental management and consumer protection not expressly delegated by law to another department, commission or political subdivision in which the United States is a party;

         F. enforce the rules, regulations and orders promulgated by the [board] department and environmental management and consumer protection laws for which the department is responsible by appropriate action in courts of competent jurisdiction;

         G. collect civil penalties pursuant to law, including reduction or elimination of penalties for violations from persons that:

             (1) within sixty days of the discovery of a potential violation, voluntarily report to the department potential violations of law enforced by the department;

             (2) initiate corrective action for the potential violation;

             (3) have not previously violated the same provision of law; and

             (4) do not present an imminent and substantial endangerment to health or the environment by the potential violation;

         [H. on the same basis as any other person, recommend and propose regulations for promulgation by the board;

         I.] H. 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 board or any other] an administrative agency with responsibility in the areas of environmental management or consumer protection, but shall not be given any special status over any other party; and

         [J.] I. have such other powers as may be necessary and appropriate for the exercise of the powers and duties delegated to the department."

    SECTION 61. Section 74-1-7 NMSA 1978 (being Laws 1971, Chapter 277, Section 10, as amended by Laws 2000, Chapter 86, Section 1 and also by Laws 2000, Chapter 96, Section 1) is amended to read:

    "74-1-7. DEPARTMENT--DUTIES.--

         A. The department is responsible for environmental management and consumer protection programs. In that respect, the department shall maintain, develop and enforce rules and standards in the following areas:

             (1) food protection;

             (2) water supply, including implementing a capacity development program to assist water systems in acquiring and maintaining technical, managerial and financial capacity in accordance with Section 1420 of the federal Safe Drinking Water Act of 1974 and establishing administrative penalties for enforcement;

             (3) liquid waste, including exclusive authority to collect on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services and to implement and administer an inspection and permitting program for on-site liquid waste systems;

             (4) air quality management as provided in the Air Quality Control Act;

             (5) radiation control and collection of license, registration and other related fees, not to exceed fees charged by the United States nuclear regulatory commission for similar licenses, as provided in the Radiation Protection Act;

             (6) noise control;

             (7) nuisance abatement;

             (8) vector control;

             (9) occupational health and safety as provided in the Occupational Health and Safety Act;

             (10) sanitation of public swimming pools and public baths;

             (11) plumbing, drainage, ventilation and sanitation of public buildings in the interest of public health;

             [(12) medical radiation, health and safety certification and standards for radiologic technologists as provided in the Medical Radiation Health and Safety Act;

             (13)] (12) hazardous wastes and underground storage tanks as provided in the Hazardous Waste Act; and

             [(14)] (13) solid waste as provided in the Solid Waste Act.

         B. Nothing in Subsection A of this section imposes requirements for the approval of subdivision plats in addition to those required elsewhere by law. Nothing in Subsection A of this section preempts the authority of any political subdivision to approve subdivision plats.

         C. Administrative penalties collected pursuant to Paragraph (2) of Subsection A of this section shall be deposited in the water conservation fund.

         D. On-site liquid waste system fees shall be deposited in the liquid waste fund.

         E. Radiation license and registration and other related fees shall be deposited in the radiation protection fund."

    SECTION 62. Section 74-1-9 NMSA 1978 (being Laws 1971, Chapter 277, Section 13, as amended) is amended to read:

    "74-1-9. ADOPTION OF REGULATIONS--NOTICE AND HEARING--APPEAL.--

         A. Any person may recommend or propose regulations to the [board] department for promulgation. The [board] department shall determine whether [or not] to hold a hearing within sixty days of submission of a proposed regulation.

         B. [No] A regulation shall not be adopted until after a public hearing by the [board] department. As used in this section, "regulation" includes any amendment or repeal [thereof]. Hearings on regulations of nonstatewide application shall be held within [that] the area [which] that is substantially affected by the regulation. Hearings on regulations of statewide application may be held at Santa Fe or within any area of the state substantially affected by the regulation. In making its regulations, the [board] department shall give the weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to:

             (1) the character and degree of injury to or interference with health, welfare, animal and plant life, property and the environment;

             (2) the public interest, including the social, economic and cultural value of the regulated activity and the social, economic and cultural effects of environmental degradation; and

             (3) the technical practicability, necessity for and economic reasonableness of reducing, eliminating or otherwise taking action with respect to environmental degradation.

         C. The standards for regulations set forth in Subsection A of this section do not apply to the promulgation of regulations under the Air Quality Control Act or any other act in which specific standards are set forth for the [board's] department's consideration.

         D. 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 regulation or any proposed new regulation shall be made available to the public as of the date the notice of the hearing is given. The notice shall also state where interested persons may secure copies of any proposed amendment or new regulation. 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 to the board for advance notice of hearings.

         E. At the hearing, the [board] department shall allow all interested persons reasonable opportunity to submit data, proposed changes to the proposed regulation, 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 of the [board] department.

         F. The [board] department may designate a hearing officer to take evidence in the hearing. A transcript shall be made of the entire hearing proceedings.

         G. [No] A regulation or an amendment or repeal [thereof] of a regulation adopted by the [board] department shall not become effective until thirty days after its filing under the State Rules Act.

         H. Any person who is or may be affected by a regulation adopted by the [board] department may appeal to the court of appeals for further relief. All such appeals shall be upon the transcript made at the hearing and shall be taken to the court of appeals within thirty days after filing of the regulation under the State Rules Act.

         I. The procedure for perfecting an appeal to the court of appeals under this section consists of the timely filing of a notice of appeal with a copy attached to the regulation from which the appeal is taken. The appellant shall certify in [his] the notice of appeal that arrangements have been made with the [board] department for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support [his] the appeal to the court, at the expense of the appellant, including three copies [which he] that the appellant shall furnish to the [board] department.

         J. Upon appeal, the court of appeals shall set aside the regulation only if found to be:

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

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

             (3) otherwise not in accordance with law."

    SECTION 63. Section 74-1-10 NMSA 1978 (being Laws 1973, Chapter 340, Section 8, as amended) is amended to read:

    "74-1-10. PENALTY.--

         A. A person who violates any [regulation] rule of the [board] department is guilty of a petty misdemeanor. This section does not apply to any [regulation] rule for which a criminal penalty is otherwise provided by law.

         B. Whenever, on the basis of any information, the secretary determines that a person has violated, is violating or threatens to violate any provision of Paragraph (2) or (3) of Subsection A of Section [74-1-8] 74-1-7 NMSA 1978 or any rule, regulation or permit condition adopted and promulgated thereunder, the secretary may:

             (1) issue a compliance order stating with reasonable specificity the nature of the violation, or threatened violation, requiring compliance immediately or within a specified time period and 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.

         C. An order issued pursuant to Subsection B of this section may include suspension or revocation of any permit issued by the department. Any penalty assessed in the order, except for residential on-site liquid waste systems, shall not exceed one thousand dollars ($1,000) for each violation. Any penalty assessed in the order for a residential on-site liquid waste system shall not exceed one hundred dollars ($100) for each violation. A penalty imposed for violation of drinking water regulations 20 NMAC 7.1 or permit conditions shall not exceed one thousand dollars ($1,000) per violation per day. 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.

         D. If a violator fails to take corrective actions within the time specified in the compliance order, the secretary shall:

             (1) assess civil penalties of not more than one thousand dollars ($1,000) for each noncompliance with the order; and

             (2) suspend or revoke any permit issued to the violator pursuant to Paragraph (3) of Subsection A of Section [74-1-8] 74-1-7 NMSA 1978.

         E. 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 hearing. Upon such a request, the secretary shall conduct a hearing. The secretary shall appoint an independent hearing officer to preside over the hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward [his] the hearing officer's recommendation based on the record to the secretary, who shall make the final decision.

         F. In connection with any proceeding pursuant to 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 adopt and promulgate rules for discovery procedures.

         G. Penalties collected pursuant to violations of rules, regulations or permit conditions adopted pursuant to Paragraph (3) of Subsection A of Section [74-1-8] 74-1-7 NMSA 1978 shall be deposited in the state treasury to be credited to the general fund.

         H. Penalties collected pursuant to violations of drinking water regulations 20 NMAC 7.1 or permit conditions pursuant to Paragraph (2) of Subsection A of Section [74-1-8] 74-1-7 NMSA 1978 shall be deposited in the state treasury to the credit of the water conservation fund."

    SECTION 64. Section 74-1-16 NMSA 1978 (being Laws 2003, Chapter 335, Section 1) is amended to read:

    "74-1-16. WATER RECREATION FACILITIES FUND--CREATED--FEE IMPOSITION--PURPOSE.--

         A. The "water recreation facilities fund" is created in the state treasury to be used to administer and enforce rules pertaining to public swimming pools, public spas and other public water recreation facilities. All fees collected pursuant to Subsection B of this section shall be deposited in the fund. Money in the fund shall not be transferred to any other fund. Disbursements from the fund shall be drawn on warrant of the secretary of finance and administration upon vouchers signed by the secretary of environment or [his] the secretary of environment's authorized representative.

         B. The [environmental improvement board] department may assess an annual fee not to exceed one hundred fifty dollars ($150) on the owner or operator of a public swimming pool, public spa or other public water recreation facility to defray the cost of administering and enforcing rules adopted in accordance with the Environmental Improvement Act pertaining to public water recreation facilities. The fee shall be based on the size of the public water recreation facility."

    SECTION 65. A new section of the Environmental Improvement Act is enacted to read:

    "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The environmental improvement board is terminated on July 1, 2015 pursuant to the provisions of the Sunset Act. The board shall continue to operate according to the provisions of Sections 74-1-4 and 74-1-5 NMSA 1978 until July 1, 2016. Effective July 1, 2016, Sections 74-1-4 and 74-1-5 NMSA 1978 are repealed."

     SECTION 66. A new section of the Environmental Improvement Act is enacted to read:

    "[NEW MATERIAL] WASTEWATER TREATMENT AND DISPOSAL TECHNOLOGIES--DUTIES OF THE DEPARTMENT.--The department shall:

         A. provide standardized objective evaluation of wastewater treatment and disposal technologies for both large- and small-flow domestic, commercial and agricultural wastewater systems and add the wastewater treatment and disposal technologies to the list of approved technologies maintained by the department; and

         B. maintain a current list of approved wastewater technologies accessible by the public on the department's internet site."

    SECTION 67. A new section of the Environmental Improvement Act is enacted ro read:

     "[NEW MATERIAL] DUTIES OF THE BOARD TO THE DEPARTMENT.--Beginning July 1, 2011, the department shall assume the duties of the board and the board shall become advisory to the department. All rules of the board shall remain in force unless the department repeals or amends them."

    SECTION 68. Section 74-2-2 NMSA 1978 (being Laws 1967, Chapter 277, Section 2, as amended) is amended to read:

    "74-2-2. DEFINITIONS.--As used in the Air Quality Control Act:

         A. "air contaminant" means a substance, including any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, microorganisms, radioactive material, any combination thereof or any decay or reaction product thereof;

         B. "air pollution" means the emission, except emission that occurs in nature, into the outdoor atmosphere of one or more air contaminants in quantities and of a duration that may with reasonable probability injure human health or animal or plant life or as may unreasonably interfere with the public welfare, visibility or the reasonable use of property;

         C. "department" means the department of environment;

         D. "director" means the administrative head of a local agency;

         E. "emission limitation" or "emission standard" means a requirement established by the [environmental improvement board or the] local board, the department, the local authority or the local agency or pursuant to the federal act that limits the quantity, rate or concentration, or combination thereof, of emissions of air contaminants on a continuous basis, including any requirements relating to the operation or maintenance of a source to assure continuous reduction;

         F. "federal act" means the federal Clean Air Act, its subsequent amendments and successor provisions;

         G. "federal standard of performance" means a standard of performance, emission limitation or emission standard adopted pursuant to 42 U.S.C. Section 7411 or 7412;

         H. "hazardous air pollutant" means an air contaminant that has been listed as a hazardous air pollutant pursuant to the federal act;

         I. "local agency" means the administrative agency established by a local authority pursuant to Paragraph [(2)] (1) of Subsection A of Section 74-2-4 NMSA 1978;

         J. "local authority" means any of the following political subdivisions of the state that have, by following the procedure set forth in Subsection A of Section 74-2-4 NMSA 1978, assumed jurisdiction for local administration and enforcement of the Air Quality Control Act:

             (1) a county that was a class A county as of January 1, 1980; or

             (2) a municipality with a population greater than one hundred thousand located within a county that was a class A county as of January 1, 1980;

         K. "local board" means a municipal, county or joint air quality control board created by a local authority;

         L. "mandatory class I area" means any of the following areas in this state that were in existence on August 7, 1977:

             (1) national wilderness areas that exceed five thousand acres in size; and

             (2) national parks that exceed six thousand acres in size;

         M. "modification" means a physical change in, or change in the method of operation of, a source that results in an increase in the potential emission rate of a regulated air contaminant emitted by the source or that results in the emission of a regulated air contaminant not previously emitted, but does not include:

             (1) a change in ownership of the source;

             (2) routine maintenance, repair or replacement;

             (3) installation of air pollution control equipment, and all related process equipment and materials necessary for its operation, undertaken for the purpose of complying with regulations adopted by the [environmental improvement board] department or the local board or pursuant to the federal act; or

             (4) unless previously limited by enforceable permit conditions:

                  (a) an increase in the production rate, if such increase does not exceed the operating design capacity of the source;

                  (b) an increase in the hours of operation; or

                  (c) use of an alternative fuel or raw material if, prior to January 6, 1975, the source was capable of accommodating such fuel or raw material or if use of an alternate fuel or raw material is caused by a natural gas curtailment or emergency allocation or [an] any other lack of supply of natural gas;

         N. "nonattainment area" means for an air contaminant an area that is designated "nonattainment" with respect to that contaminant within the meaning of Section 107(d) of the federal act;

         O. "person" includes an individual, partnership, corporation, association, the state or political subdivision of the state and any agency, department or instrumentality of the United States and any of their officers, agents or employees;

         P. "potential emission rate" means the emission rate of a source at its maximum capacity to emit a regulated air contaminant under its physical and operational design, provided any physical or operational limitation on the capacity of the source to emit a regulated air contaminant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its physical and operational design only if the limitation or the effect it would have on emissions is enforceable by the department or the local agency pursuant to the Air Quality Control Act or the federal act;

         Q. "regulated air contaminant" means an air contaminant, the emission or ambient concentration of which is regulated pursuant to the Air Quality Control Act or the federal act;

         R. "secretary" means the secretary of environment;

         S. "significant deterioration" means an increase in the ambient concentrations of an air contaminant above the levels allowed by the federal act or federal regulations for that air contaminant in the area within which the increase occurs;

         T. "source" means a structure, building, equipment, facility, installation or operation that emits or may emit an air contaminant;

         U. "standard of performance" means a requirement of continuous emission reduction, including any requirement relating to operation or maintenance of a source to assure continuous emission reduction;

         V. "state implementation plan" means a plan submitted by New Mexico to the federal environmental protection agency pursuant to 42 U.S.C. Section 7410; and

         W. "toxic air pollutant" means an air contaminant, except a hazardous air pollutant, classified by the [environmental improvement board] department or the local board as a toxic air pollutant."

    SECTION 69. Section 74-2-3 NMSA 1978 (being Laws 1967, Chapter 277, Section 3, as amended) is amended to read:

    "74-2-3. [ENVIRONMENTAL IMPROVEMENT BOARD] DEPARTMENT JURISDICTION.--

         [A. In taking any action under the Air Quality Control Act, a majority of the environmental improvement board constitutes a quorum, but any action, order or decision of the environmental improvement board requires the concurrence of three members present at a meeting.

         B.] Except as provided in the Air Quality Control Act, the jurisdiction of the [environmental improvement board] department extends to all areas of the state except within the boundaries of a local authority."

    SECTION 70. Section 74-2-4 NMSA 1978 (being Laws 1967, Chapter 277, Section 4, as amended) is amended to read:

    "74-2-4. LOCAL AUTHORITY.--

         A. A county or municipality meeting the qualifications set forth in Paragraph (1) or (2) of Subsection J of Section 74-2-2 NMSA 1978 may assume jurisdiction as a local authority by adopting an ordinance providing for the local administration and enforcement of the Air Quality Control Act. The ordinance shall:

             [(1) create a local board to perform, within the boundaries of the local authority, those functions delegated to the environmental improvement board under the Air Quality Control Act, except any functions reserved exclusively for the environmental improvement board;

             (2)] (1) create a local board or agency to administer and enforce the provisions of the Air Quality Control Act within the boundaries of the local authority that shall, within the boundaries of the local authority, perform all of the duties required of the department and exert all of the powers granted to the department, except for those duties and powers reserved exclusively for the department; and

             [(3)] (2) provide for the appointment of a director who shall perform for the local authority the same duties as required of the secretary under the Air Quality Control Act, except the duties and powers reserved exclusively for the secretary.

         B. At least a majority of the members of a local board shall be individuals who represent the public interest and do not derive any significant portion of their income from persons subject to or who appear before the local board on issues related to the federal act or the Air Quality Control Act.

         C. Prior to adopting any ordinance regulating air pollution, public hearings and consultations shall be held as directed by the local authority adopting the ordinance. The provisions of any ordinance shall be consistent with the substantive provisions of the Air Quality Control Act and shall provide for standards and regulations not lower than those required by regulations adopted by the [environmental improvement board] department.

         D. Notwithstanding the provisions of Subsection A of this section, the [environmental improvement board and the secretary] department shall retain jurisdiction and control for the administration and enforcement of the Air Quality Control Act as determined in that act with respect to any act or failure to act, governmental or proprietary, of any local authority that causes or contributes to air pollution, including proceeding against a local authority as provided in Section 74-2-12 NMSA 1978. "Failure to act", as used in this section, includes failure to act against any person violating the applicable ordinance or regulation adopted pursuant thereto.

         E. Any local authority that is located within a transportation-related pollutant nonattainment area or maintenance area may provide for a vehicle emission inspection and maintenance program for vehicles under twenty-six thousand pounds gross vehicle weight powered by a spark-ignited internal combustion engine, which program shall be no more stringent than that required under the federal act or under federal air quality standards. Any two or more local authorities may adopt identical rules and regulations necessary to implement the vehicle emission inspection and maintenance program, including examining the alternatives of public or private operation of the program.

         F. Any local authority that has implemented a vehicle emission inspection and maintenance program may extend the enforcement of that program by entering into joint powers agreements with any municipality or county within the designated airshed or with the department.

         G. No tax shall be imposed to fund any vehicle emission inspection and maintenance program until the local authority has submitted the question of imposition of a tax to the registered voters of the local authority and those registered voters have approved the imposition of the tax.

         H. A local authority having a vehicle emission inspection and maintenance program shall conduct the vehicle emission inspection and maintenance program through a decentralized privately owned and operated system unless air quality emissions result in automatic implementation of another type of program under the terms of a contingency plan required and approved by the United States environmental protection agency. The local authority shall set the emission inspection fee by ordinance.

         I. A local authority having a vehicle emission inspection and maintenance program is authorized to adopt rules, regulations and guidelines governing the establishment of private vehicle emission inspection and maintenance stations. No private vehicle emission inspection and maintenance station shall test vehicles unless the station possesses a valid permit issued by the local agency. Permit fees shall be determined by ordinance of the local authority and shall not exceed two hundred dollars ($200) per year per station. Additionally, a local authority may charge a permit fee of up to thirty-five dollars ($35.00) per year for each vehicle emissions mechanic and for each vehicle emissions inspector. The imposition of permit fees does not require a vote of the registered voters of the local authority."

    SECTION 71. Section 74-2-5.1 NMSA 1978 (being Laws 1992, Chapter 20, Section 5) is amended to read:

    "74-2-5.1. DUTIES AND POWERS OF THE DEPARTMENT AND THE LOCAL AGENCY OR BOARD.--

         A. The department or local agency or board shall prevent or abate air pollution.

         B. The department or local agency or board shall:

             (1) adopt, promulgate, publish, amend and repeal regulations consistent with the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution, including regulations prescribing air standards, within the geographic area of the department's jurisdiction or the local agency's or board's jurisdiction, or any part thereof; and

             (2) adopt a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions within the geographic area of the department's jurisdiction or the local agency's or board's jurisdiction or any part thereof.

         C. Regulations adopted by the department or the local agency or board may:

             (1) include regulations to protect visibility in mandatory class I areas to prevent significant deterioration of air quality and to achieve national ambient air quality standards in nonattainment areas; provided that such regulations:

                  (a) shall be no more stringent than, but at least as stringent as required by, the federal act and federal regulations pertaining to visibility protection in mandatory class I areas, pertaining to prevention of significant deterioration and pertaining to nonattainment areas; and

                  (b) shall be applicable only to sources subject to such regulation pursuant to the federal act;

             (2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that, except as provided in this subsection:

                  (a) shall be no more stringent than, but at least as stringent as required by, federal standards of performance; and

                  (b) shall be applicable only to sources subject to such federal standards of performance;

             (3) include regulations governing emissions from solid waste incinerators that shall be at least as stringent as, and may be more stringent than, any applicable federal emission limitations;

             (4) include regulations requiring the installation of control technology for mercury emissions that removes the greater of what is achievable with best available control technology or ninety percent of the mercury from the input fuel for all coal-fired power plants, except for coal-fired power plants constructed and generating electric power and energy before July 1, 2007;

             (5) require notice to the department or the local agency or board of the intent to introduce or permit the introduction of an air contaminant into the air within the geographical area of the department's jurisdiction or the local agency's or board's jurisdiction; and

             (6) require any person emitting any air contaminant to:

                  (a) install, use and maintain emission monitoring devices;

                  (b) sample emissions in accordance with methods and at locations and intervals as may be prescribed by the department or the local agency or board;

                  (c) establish and maintain records of the nature and amount of emissions;

                  (d) submit reports regarding the nature and amounts of emissions and the performance of emission control devices; and

                  (e) provide any other reasonable information relating to the emission of air contaminants.

         D. Any regulation adopted pursuant to this section shall be consistent with federal law, if any, relating to control of motor vehicle emissions.

         E. In making its regulations, the department or the local agency or board shall give weight it deems appropriate to all facts and circumstances, including but not limited to:

             (1) character and degree of injury to or interference with health, welfare, visibility and property;

             (2) the public interest, including the social and economic value of the sources and subjects of air contaminants; and

             (3) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved.

         F. The department and the local agency or board for their respective jurisdictions shall:

             [A.] (1) develop facts and make investigations and studies consistent with the Air Quality Control Act and, as required for enforcement of that act, enter at all reasonable times in or upon any private or public property, except private residences, that the department or the local agency or board has reasonable cause to believe is or will become a source contributing to air pollution and require the production of information relating to emissions that cause or contribute to air pollution. The results of any such investigations shall be reduced to writing if any enforcement action is contemplated, and a copy shall be furnished to the owner or occupants of the premises before the action is filed;

             [B.] (2) institute legal proceedings to compel compliance with the Air Quality Control Act or any regulation of the [environmental improvement board] department or the local agency or board;

             [C.] (3) encourage and make every reasonable effort to obtain voluntary cooperation by the owner or occupants to preserve, restore or improve air purity;

             [D.] (4) consult with any person proposing to construct, install or otherwise acquire an air contaminant source, device, system or control mechanism concerning the efficiency of the device, system or mechanism or the air pollution problem that may be related to the source, device, system or mechanism; provided that consultation shall not relieve any person from compliance with the Air Quality Control Act, regulations in force pursuant to that act or any other provision of law;

             [E.] (5) establish a small business stationary source technical and environmental compliance assistance program, consistent with the provisions of Section 507 of the federal act;

             [F.] (6) accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, or from any person;

             [G.] (7) classify and record air contaminant sources that, in its judgment, may cause or contribute to air pollution, according to levels and types of emissions and other characteristics that relate to air pollution; provided that classifications may be for application to the entire geographical area of the department's responsibility or the local board or authority's responsibility or to any designated portion of that area and shall be made with special reference to the effects on health, economic and social factors and physical effects on property; and

             [H.] (8) develop [and present to the environmental improvement board or the local board] a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions in the different portions of the geographical area of the department's responsibility or the local board's or authority's responsibility."

    SECTION 72. Section 74-2-5.3 NMSA 1978 (being Laws 2009, Chapter 98, Section 1) is amended to read:

    "74-2-5.3. DUTIES AND POWERS OF [ENVIRONMENTAL IMPROVEMENT BOARD] THE DEPARTMENT AND LOCAL AGENCY OR BOARD FOR ATTAINMENT AND MAINTENANCE OF NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE.--

         A. If the [environmental improvement board] department or the local agency or board determines that emissions from sources within its jurisdiction cause or contribute to ozone concentrations in excess of ninety-five percent of a national ambient air quality standard for ozone, it shall adopt a plan, including regulations, to control emissions of oxides of nitrogen and volatile organic compounds to provide for attainment and maintenance of the standard. Regulations adopted pursuant to this section shall be limited to sources of emissions within the area of the state where the ozone concentrations exceed ninety-five percent of the national ambient air quality standard.

         B. Notwithstanding the limitations in Section

[74-2-5] 74-2-5.1 NMSA 1978, the [environmental improvement board] department or the local agency or board may adopt standards of performance for sources of emissions for which no federal standard of performance has been adopted and may adopt standards of performance more stringent than federal standards of performance for sources for which a federal standard of performance has been adopted. The standards of performance shall reflect the degree of emission limitation achievable through the application of control technology that is reasonably available considering technological and economic feasibility. The standards of performance may be more stringent than applicable federal standards of performance if the department, local agency or board determines that the federal standards of performance do not reflect the degree of emission limitation achievable through the application of control technology that is reasonably available, considering technological and economic feasibility, and that methods to further reduce emissions are commercially available and will result in substantially greater reductions in emissions than the federal standards for such sources.

         C. In adopting regulations, the [environmental improvement board] department or the local agency or board shall consider the following:

             (1) the public interest, including the social and economic value of the sources of emissions and subjects of air contaminants;

             (2) previous experience with equipment and methods available to control the air contaminants involved;

             (3) energy, environmental and economic impacts and other social costs;

             (4) efforts by sources of emissions to reduce emissions prior to the effective date of regulations adopted under this section; and

             (5) for existing sources of emissions, the remaining useful life of any existing source to which the regulation would apply.

         D. No regulation adopted pursuant to this section shall require emission reductions for sources that between March 25, 2004 and January 1, 2009:

             (1) implemented and are operating reasonable control measures, considering technological and economic feasibility, that result in quantifiable reductions for emission of oxides of nitrogen or volatile organic compounds; or

             (2) are mandated by other requirements enforceable by the department or the local authority to implement reductions in emissions of oxides of nitrogen or volatile organic compounds."

    SECTION 73. Section 74-2-6 NMSA 1978 (being Laws 1967, Chapter 277, Section 6, as amended) is amended to read:

    "74-2-6. ADOPTION OF REGULATIONS--NOTICE AND HEARINGS.--

         A. Any person may recommend or propose regulations to the [environmental improvement board] department or the local agency or board for adoption. The [environmental improvement board] department or the local agency or board shall determine whether to hold a hearing within sixty days of submission of a proposed regulation.

         B. No [regulations] regulation or emission control requirement shall be adopted until after a public hearing by the [environmental improvement board] department or the local agency or board. As used in this section, "regulation" includes any amendment or repeal thereof. Hearings on regulations of nonstatewide application shall be held within that area that is substantially affected by the regulation. Hearings on regulations of statewide application may be held in Santa Fe or within any area of the state substantially affected by the regulation.

         C. Notice of the hearing shall be given at least thirty 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 notice shall also state where interested persons may secure copies of any proposed regulation or air quality standard. 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 to the [environmental improvement board] department or the local agency or board for advance notice of its hearings.

         D. At the hearing, the [environmental improvement board] department or the local agency or board 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. Any person heard or represented at the hearing shall be given written notice of the action of the [environmental improvement board] department or the local agency or board.

         E. The [environmental improvement board] department or the local agency or board may designate a hearing officer to take evidence in the hearing.

         F. No [regulations] regulation or emission control requirement adopted by the [environmental improvement board] department or the local agency or board shall become effective until thirty days after its filing under the State Rules Act."

    SECTION 74. Section 74-2-7 NMSA 1978 (being Laws 1972, Chapter 51, Section 4, as amended) is amended to read:

    "74-2-7. PERMITS--PERMIT APPEALS TO THE [ENVIRONMENTAL IMPROVEMENT BOARD] DEPARTMENT OR THE LOCAL AGENCY OR BOARD--PERMIT FEES.--

         A. By regulation, the [environmental improvement board] department or the local agency or board shall require:

             (1) a person intending to construct or modify any source, except as otherwise specifically provided by regulation, to obtain a construction permit from the department or the local agency prior to such construction or modification; and

             (2) a person intending to operate any source for which an operating permit is required by the 1990 amendments to the federal act, except as otherwise specifically provided by regulation, to obtain an operating permit from the department or the local agency.

         B. Regulations adopted by the [environmental improvement board] department or the local agency or board shall include at least the following provisions:

             (1) requirements for the submission of relevant information, including information the department or the local agency or board deems necessary to determine that regulations and standards under the Air Quality Control Act or the federal act will not be violated;

             (2) specification of the deadlines for processing permit applications; provided that the deadline for a final decision by the department or the local agency on a construction permit application may not exceed:

                  (a) ninety days after the application is determined to be administratively complete, if the application is not subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings; or

                  (b) one hundred eighty days after the application is determined to be administratively complete, if the application is subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings;

             (3) that if the department or local agency fails to take final action on a construction permit application within the deadlines specified in Paragraph (2) of this subsection, the department or local agency shall notify the applicant in writing that an extension of time is required to process the application and specify in detail the grounds for the extension;

             (4) a description of elements required before the department or local agency shall deem an application administratively complete;

             (5) specification of the public notice, comment period and public hearing, if any, required prior to the issuance of a permit; provided that the permit regulations adopted:

                  (a) by the [environmental improvement board shall] department include provisions governing notice to nearby states; and

                  (b) by any local agency or board [shall] include provisions requiring that notice be given to the department of all permit applications by any source that emits, or has a potential emission rate of, one hundred tons per year or more of any regulated air contaminant, including any source of fugitive emissions of each regulated air contaminant, at least sixty days prior to the date on which construction or major modification is to commence;

             (6) a schedule of construction permit fees sufficient to cover the reasonable costs of:

                  (a) reviewing and acting upon any application for such permit; and

                  (b) implementing and enforcing the terms and conditions of the permit, excluding any court costs or other costs associated with an enforcement action;

             (7) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act;

             (8) a method for accelerated permit processing that may be requested at the sole discretion of the applicant at the time the applicant submits a construction permit application and that:

                  (a) allows the department or local agency to contract with qualified outside firms to assist the department or local agency in its accelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm that does not have a conflict of interest; and

                  (b) establishes a process for the department or local agency to account for the expenditure of the accelerated permit processing fees;

             (9) allowance for additional permit application fees, sufficient to cover the reasonable costs of an accelerated permit application review process. Before the applicant is notified that the permit application has been determined to be complete, the department or local agency shall give the applicant a reasonable estimate of costs of an accelerated permit application review process;

             (10) specification of the maximum length of time for which a permit shall be valid; provided that for an operating permit such period may not exceed five years; and

             (11) for an operating permit only:

                  (a) provisions consistent with Sections 502(b) and 505(b) of the federal act providing: 1) notice to and review and comment by the United States environmental protection agency; and 2) that if the department or local agency receives notice of objection from the United States environmental protection agency before the operating permit is issued, the department or the local agency shall not issue the permit unless it is revised and issued under Section 505(c) of the federal act;

                  (b) provisions governing renewal of the operating permit; and

                  (c) specification of the conditions under which the operating permit may be terminated, modified or revoked and reissued prior to the expiration of the term of the operating permit.

         C. Except as provided in Subsection O of this section, the department or the local agency may deny any application for:

             (1) a construction permit if it appears that the construction or modification:

                  (a) will not meet applicable standards, rules or requirements of the Air Quality Control Act or the federal act;

                  (b) will cause or contribute to air contaminant levels in excess of a national or state standard or, within the boundaries of a local authority, applicable local ambient air quality standards; or

                  (c) will violate any other provision of the Air Quality Control Act or the federal act; and

             (2) an operating permit if the source will not meet the applicable standards, rules or requirements pursuant to the Air Quality Control Act or the federal act.

         D. The department or the local agency may specify conditions to any permit granted under this section, including:

             (1) for a construction permit:

                  (a) a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the standards, rules and requirements of the Air Quality Control Act and the federal act;

                  (b) individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the permit application, whichever is more stringent;

                  (c) compliance with applicable federal standards of performance;

                  (d) reasonable restrictions and limitations not relating to emission limits or emission rates; or

                  (e) any combination of the conditions listed in this paragraph; and

             (2) for an operating permit, terms and conditions sufficient to ensure compliance with the applicable standards, rules and requirements pursuant to the Air Quality Control Act and the federal act.

         E. This section does not authorize the department or the local agency to require the use of machinery, devices or equipment from a particular manufacturer if the federal standards of performance, state regulations and permit conditions may be met by machinery, devices or equipment otherwise available.

         F. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act and any applicable regulations of the [environmental improvement board] department or the local agency or board. Any conditions placed upon a permit by the department or the local agency shall be enforceable to the same extent as a regulation of its board.

         G. A person who participated in a permitting action before the department or the local agency shall be notified by the department or the local agency of the action taken and the reasons for the action. Notification of the applicant shall be by certified mail.

         H. A person who participated in a permitting action before the department or the local agency and who is adversely affected by such permitting action may file a petition for hearing before the [environmental improvement board] secretary or the local agency or board. The petition shall be made in writing to the [environmental improvement board] secretary or the local agency or board within thirty days from the date notice is given of the department's or the local agency's action. Unless a timely petition for hearing is made, the decision of the department or the local agency shall be final.

         I. If a timely petition for hearing is made, the [environmental improvement board] secretary or the local agency or board shall hold a hearing within sixty days after receipt of the petition. The [environmental improvement board] secretary or the local agency or board 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 hearing. If the subject of the petition is a permitting action deemed by the [environmental improvement board] secretary or the local agency or board to substantially affect the public interest, the [environmental improvement board] secretary or the local agency or board shall ensure that the public receives notice of the date, time and place of the hearing. The public in such circumstances shall also be given a reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing.

         J. The [environmental improvement board] secretary or the local agency or board may designate a hearing officer to take evidence in the hearing. All hearings shall be recorded.

         K. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the [environmental improvement board] secretary or the local agency or board shall sustain, modify or reverse the action of the department or the local agency respectively.

         L. Notwithstanding any other provision of law and subject to the provisions of Section 74-2-4 NMSA 1978, a final decision on a permit by the department, [the environmental improvement board] the local agency, the local board or the court of appeals that a source will or will not meet applicable local, state and federal air pollution standards and regulations shall be conclusive and is binding on every other state agency and as an issue before any other state agency shall be deemed resolved in accordance with that final decision.

         M. Subject to the provisions of Section 74-2-4 NMSA 1978, if the local agency or board has adopted a permit regulation pursuant to this section, persons constructing or modifying any source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department.

         N. Fees collected pursuant to this section shall be deposited in:

             (1) the state air quality permit fund created by Section 74-2-15 NMSA 1978 if collected by the department; or

             (2) a fund created pursuant to Section 74-2-16 NMSA 1978 if collected by a local agency pursuant to a permit regulation adopted by the local agency or board pursuant to this section.

         O. The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by regulation of the [environmental improvement board] department, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national ambient air quality standard. The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, "best system of emissions reduction" for cotton gins means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts."

    SECTION 75. Section 74-2-8 NMSA 1978 (being Laws 1967, Chapter 277, Section 8, as amended) is amended to read:

    "74-2-8. VARIANCES.--

         A. The [environmental improvement board] department or the local agency or board may grant an individual variance from the limitations prescribed under the Air Quality Control Act, any regulation of the [environmental improvement board] department or the local agency or board or any permit condition imposed by the department or the local agency, whenever it is found, upon presentation of adequate proof:

             (1) that compliance with any part of that act, any regulation of the [environmental improvement board] department or the local agency or board or any permit condition will:

                  (a) result in an arbitrary and unreasonable taking of property; or

                  (b) impose an undue economic burden upon any lawful business, occupation or activity; and

             (2) that the granting of the variance will not:

                  (a) result in a condition injurious to health or safety; or

                  (b) cause or contribute to an air contaminant level in excess of any primary national ambient air quality standards.

         B. [No] A variance shall not be granted pursuant to this section until the [environmental improvement board] department or the local agency or board has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges and the general public.

         C. Any variance or renewal [thereof] shall be granted within the requirements of Subsection A of this section and for time periods and under conditions consistent with the reasons [therefor] for the variance of renewal and within the following limitations:

             (1) if the variance is granted on the ground that there are no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available;

             (2) if the variance is granted on the ground that compliance with the particular requirement from which variance is sought will necessitate the taking of measures that, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the [environmental improvement board] department or the local agency or board, is requisite for the taking of the necessary measures. A variance granted on the ground specified in this paragraph shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable; or

             (3) if the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraphs (1) and (2) of this subsection, it shall be for not more than one year.

         D. Any person seeking a variance shall do so by filing a petition for variance with the secretary or the director charged with implementation of the Air Quality Control Act at the site where the variance will apply. The secretary or the director shall promptly investigate the petition and make recommendation to [his] the secretary's or the director's respective board as to the disposition of the petition.

         E. Upon receiving the recommendation of the secretary or the director on the variance, the [environmental improvement board] department or the local agency or board shall:

             (1) if the secretary or the director favors a variance, hold a public hearing prior to the granting of any variance; and

             (2) if the secretary or the director is opposed to the granting of the variance, hold a hearing only upon the request of the petitioner.

         F. In the hearing, the burden of proof shall be upon the petitioner."

    SECTION 76. Section 74-2-9 NMSA 1978 (being Laws 1971, Chapter 57, Section 1, as amended) is amended to read:

    "74-2-9. JUDICIAL REVIEW--ADMINISTRATIVE ACTIONS.--

         A. Any person adversely affected by an administrative action taken by the [environmental improvement board] department, the local agency or board, the secretary or the director may appeal to the court of appeals. All appeals shall be upon the record made at the hearing and shall be taken to the court of appeals within thirty days following the date of the action.

         B. For appeals of regulations, the date of the action shall be the date of the filing of the regulation by the [environmental improvement board] department or the local agency or board pursuant to the State Rules Act.

         C. Upon appeal, the court of appeals shall set aside the action only if 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.

         D. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted:

             (1) by the [environmental improvement board, the] local board, the department or the local agency, whichever took the action being appealed; or

             (2) by the court of appeals if the [environmental improvement board, the] local board, the department or the local agency denies a stay or fails to act upon an application for a stay within sixty days after receipt of the application."

    SECTION 77. Section 74-2-11.1 NMSA 1978 (being Laws 1979, Chapter 393, Section 7, as amended) is amended to read:

    "74-2-11.1. LIMITATIONS ON REGULATIONS.--The Air Quality Control Act does not:

         A. authorize the [environmental improvement board] department or the local agency or board to make any regulation with respect to any condition or quality of the outdoor atmosphere if the condition or air quality level and its effect are confined entirely within the boundaries of the industrial or manufacturing property within which the air contaminants are or may be emitted and public access is restricted within such boundaries;

         B. grant to the [environmental improvement board] department or the local agency or board any jurisdiction or authority affecting the relation between employers and employees with respect to or arising out of any condition of air quality; or

         C. supersede or limit the applicability of any law relating to industrial health, safety or sanitation."

    SECTION 78. 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 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 penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) 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] department or the local agency or board may implement a field citation program through regulations 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 by the [environmental improvement board] department or the local agency or 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, 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 79. Section 74-2-13 NMSA 1978 (being Laws 1972, Chapter 51, Section 8, as amended) is amended to read:

    "74-2-13. INSPECTION.--The secretary or the director or an authorized representative of either, upon presentation of [his] credentials:

         A. shall have a right of entry to, upon or through any premises on which an emission source is located or on which any records required to be maintained by regulations of the [environmental improvement board] department or the local board or by any permit condition are located; and

         B. may at reasonable times:

             (1) have access to and copy any records required to be established and maintained by regulations of the [environmental improvement board] department or the local board or any permit condition;

             (2) inspect any monitoring equipment and method required by regulations of the [environmental improvement board] department or the local board or by any permit condition; and

             (3) sample any emissions that are required to be sampled pursuant to regulation of the [environmental improvement board] department or the local board or any permit condition."

    SECTION 80. Section 74-2-14 NMSA 1978 (being Laws 1967, Chapter 277, Section 12, as amended) is amended to read:

    "74-2-14. CRIMINAL PENALTIES.--

         A. Notwithstanding any other provision of the Air Quality Control Act, a local authority may prescribe penalties for violations of an ordinance:

             (1) regulating open-fire burning or residential incineration; or

             (2) prohibiting the removal of motor vehicle emission control devices installed as required by law and requiring the maintenance of such devices in operating condition.

         B. Notwithstanding any other provision of the Air Quality Control Act, it is a petty misdemeanor to violate any regulations of the [environmental improvement board] department:

             (1) regulating open-fire burning or residential incineration; or

             (2) prohibiting the removal of motor vehicle emission control devices installed as required by law or requiring the maintenance of such devices in operating condition.

         C. Except as provided in Subsection D of this section, [any] a person who knowingly commits any of the following acts is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section

31-18-15 NMSA 1978:

             (1) violation of any regulation relating to commercial or industrial incineration;

             (2) violation of any regulation adopting any federal standard of performance;

             (3) violation of any regulation relating to control of hazardous air pollutants; or

             (4) violation of any regulation relating to control of toxic air pollutants.

         D. At any source required to have an operating permit pursuant to Section 502 of the federal act, [any] a person who knowingly commits any violation of any applicable standard, regulation or requirement under the Air Quality Control Act or the federal act, any term or condition of an operating permit or any emission fee or filing requirement in any operating permit regulation of the [environmental improvement board] department or the local agency or board is guilty of a fourth degree felony and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment of not more than eighteen months or both.

         E. [Any] A person who knowingly commits any violation of a regulation of the [environmental improvement board] department or the local agency or board not listed in Subsection B, C or D of this section is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.

         F. [Any] A person who knowingly:

             (1) makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any regulation adopted pursuant to that act; or

             (2) falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any ordinance or regulation adopted pursuant to that act; is guilty of a misdemeanor and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment for not more than twelve months or by both.

         G. [Any] A person who knowingly releases into the ambient air any hazardous air pollutant or extremely hazardous substance listed pursuant to Section 302(a)(2) of the federal Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 1102(a)(2) that is not listed in Section 112 of the federal act and who knows at the time of the release that [he] it creates a substantial danger of death or serious bodily injury to another person is guilty of a second degree felony and, upon conviction, shall be sentenced to a term of imprisonment not to exceed nine years or a fine not to exceed one hundred thousand dollars ($100,000) or both. Any person, other than an individual or a governmental entity, who commits such violation is guilty of a second degree felony and shall be fined in an amount not to exceed two hundred fifty thousand dollars ($250,000). If a conviction of any person under this subsection is for a second or subsequent violation, the maximum punishment shall be doubled with respect to both the fine and the imprisonment."

    SECTION 81. A new section of the Air Quality Control Act is enacted to read:

    "[NEW MATERIAL] ENVIRONMENTAL BOARD DUTIES.--The environmental improvement board shall assist the department in carrying out the objectives of the Air Quality Control Act, including advising the department on the adoption and implementation of regulations adopted pursuant to that act, permit and variance applications and other duties as determined by the department."

    SECTION 82. Section 74-3-3 NMSA 1978 (being Laws 1959, Chapter 185, Section 3, as amended) is amended to read:

    "74-3-3. COUNCIL DUTIES--PER DIEM.--It is the duty of the council to advise the agency [and the board] on technical matters relating to radiation. Members of the council shall receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance. Money expended for these purposes shall be paid from agency funds."

    SECTION 83. Section 74-3-5 NMSA 1978 (being Laws 1971, Chapter 284, Section 5, as amended) is amended to read:

    "74-3-5. RADIATION PROTECTION CONSULTANT--RADIATION REGULATIONS--INSPECTION.--

         A. The [board] agency shall be the radiation protection consultant for all agencies and institutions of the state and shall, with the advice and consent of the agency and council, have the authority, after considering the facts and circumstances and following the procedures set forth in Section 74-1-9 NMSA 1978, to promulgate rules:

             (1) concerning the health and environmental aspects of the use, management, storage and disposal of radioactive material and the operation of ionizing and non-ionizing radiation emitting equipment;

             (2) prescribing license, registration and other related fees, all of which shall be deposited in the radiation protection fund;

             (3) requiring the posting of a bond running only to the state for licensed activities, which bond shall be adequate to insure, in the event of abandonment, default or other performance inabilities of the licensee, compliance with the requirements of the rules or license conditions, including actions of the licensee required during or after the cessation of operations, which bond shall be released upon demonstration by the licensee that the conditions of the license have been satisfied; and

             (4) establishing continued care fund deposit requirements and other continued care requirements as provided in Section 74-3-6 NMSA 1978.

         B. Upon adoption, rules shall be furnished to interested parties upon request.

         C. In order to carry out the purposes of the Radiation Protection Act, the director or [his] the director's authorized representatives may, as a condition of license or registration, enter at all reasonable times in or upon any private or public property where the director has reasonable cause to believe there is radioactive material or radiation equipment."

    SECTION 84. Section 74-3-6 NMSA 1978 (being Laws 1977, Chapter 343, Section 6) is amended to read:

    "74-3-6. CONTINUED CARE FUND REGULATIONS--REQUIREMENTS--EXEMPTIONS--MODIFICATION.--

         A. In the adoption of regulations governing continued care fund requirements, the [board] agency shall consider the desirability of pro-rated payments by the licensee in relation to the expected life of the licensed operation.

         B. Licensees whose licensed activities consist only of uses of radioactive material [which] that do not create a situation requiring continued care of radioactive materials after the expiration of the license, including but not limited to x-ray generating devices, laboratories, medical facilities, pharmacies, industrial radiography, well logging and gauges, shall not be required to make deposits to the continued care fund.

         C. Until the nuclear regulatory commission adopts regulations governing continued care activities, continued care fund deposits required from a uranium mill license holder shall be ten cents ($.10) per pound of U308 in uranium concentrate (yellow cake) produced from [such] the mill, unless the [board] agency determines that a lesser amount is appropriate [and]. The requirement of a mill license holder to make deposits to the continued care fund will terminate for each mill after the cumulative continued care fund deposit for that mill reaches one million dollars ($1,000,000).

         D. After the nuclear regulatory commission adopts regulations governing continued care activities:

             (1) the [board] agency may alter the amount or character of a licensee's obligation by regulation if such regulations are no more stringent than the regulations of the nuclear regulatory commission governing continued care activities;

             (2) the [board] agency may adopt continued care requirements more stringent than those of the nuclear regulatory commission upon the finding that such regulations are necessitated by unique or special circumstances in New Mexico; and

             (3) deposits by a licensee to the continued care fund shall be considered in adopting regulations altering the amount or character of a licensee's continued care obligation."

    SECTION 85. Section 74-3-7 NMSA 1978 (being Laws 1977, Chapter 343, Section 7, as amended) is amended to read:

    "74-3-7. CONTINUED CARE FUND CREATED--APPROPRIATION--APPROVAL--REGULATION.--

         A. The "radiation protection continued care fund" is created in the state treasury. Cash balances in the fund shall be invested by the state treasurer as other state funds under [his] the state treasurer's jurisdiction are invested.

         B. Money in the radiation protection continued care fund is appropriated to the agency for use in remedying and preventing situations [which] that may be harmful to the health, safety, welfare or property of the people and [which] that involve abandoned wastes or inoperative facilities [which] that are or were operated by depositors to the [continued care] fund.

         C. Emergency expenditures up to the amount of one hundred thousand dollars ($100,000) for any single emergency incident may be made from the radiation protection continued care fund by the director [subject to approval of the chairman of the board]. Expenditures involving more than one hundred thousand dollars ($100,000) shall be made only after prior approval of the state board of finance.

         D. Subject to the provisions of this section, the [board] agency shall adopt regulations governing the administration of the radiation protection continued care fund."

    SECTION 86. Section 74-3-8 NMSA 1978 (being Laws 1971, Chapter 284, Section 6, as amended) is amended to read:

    "74-3-8. REGISTRATION OF RADIATION EQUIPMENT.--

         A. It is unlawful for [any] a person to possess, use, store, dispose of, manufacture, repair, alter or inspect radiation equipment specified by regulation of the [board] agency unless [he] the person registers with the agency.

         B. The agency shall issue registration certificates in accordance with procedures prescribed by regulation [of the board]. Registration applications shall be made on forms provided by the agency. The registration statement shall be limited to information [which] that the [board] agency determines to be necessary for the protection of the health of the people of the state.

         C. The requirement of registration shall not be interpreted to imply approval by the agency of the manner in which the activities requiring registration are carried out."

    SECTION 87. Section 74-3-9 NMSA 1978 (being Laws 1971, Chapter 284, Section 7, as amended) is amended to read:

    "74-3-9. LICENSING OF RADIOACTIVE MATERIAL--APPEAL.--

         A. It is unlawful for a person to possess, use, store, dispose of, manufacture, process, repair or alter any radioactive material unless [he] the person holds:

             (1) a license issued by the nuclear regulatory commission and notification by the licensee to the agency of license identification;

             (2) a license issued by an agreement state and notification by the licensee to the agency of license identification; or

             (3) a license issued by the agency.

         B. The agency shall issue licenses, collect license, registration and other related fees and deposit those fees in the radiation protection fund and shall approve requests for reciprocity in accordance with procedures prescribed by rule [of the board]. License applications shall be made on forms provided by the agency. The agency shall not issue a license unless the applicant has demonstrated the capability of complying with all applicable rules of the [board] agency.

         C. The [board] agency may, by rule, establish radiation license, registration and other related fees and exempt from the requirements of licensure specific quantities of any radioactive material determined by the [board] agency not to constitute a health or environmental hazard.

         D. The holding of a license issued by the agency, the nuclear regulatory commission or an agreement state does not relieve the licensee from the responsibility of complying with all applicable rules of the [board] agency.

         E. A person who is or may be affected by licensing action of the agency may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

    SECTION 88. Section 74-3-10 NMSA 1978 (being Laws 1971, Chapter 284, Section 8, as amended) is amended to read:

    "74-3-10. EXEMPTIONS.--

         A. Nothing contained in the Radiation Protection Act shall be construed as authorizing the agency [or the board] to limit the kind and amount of radiation that may be applied to a person for diagnostic or therapeutic purposes by or under the direction of a licensed physician.

         B. The Radiation Protection Act shall not apply to the transportation of any radioactive material in conformity with regulations of the department of transportation or other agency of the federal government having jurisdiction or to any material or equipment owned by the United States and being used, stored or transported by or for the United States or any department, agency or instrumentality [thereof] of the United States, except to the extent required or permitted by the authority in control of such materials or equipment.

         C. The Radiation Protection Act shall not apply to the mining, extraction, processing, storage or transportation of radioactive ores or uranium concentrates that are regulated by the United States bureau of mines or any other federal or state [agency] entity having authority unless the authority is ceded by such [agency] entity to the [board] agency."

    SECTION 89. Section 74-3-15 NMSA 1978 (being Laws 1971, Chapter 284, Section 11, as amended) is amended to read:

    "74-3-15. AGREEMENT STATUS AUTHORIZED.--The [board and the] agency, through the governor, may enter into an agreement with the nuclear regulatory commission, as provided in the federal Atomic Energy Act of 1954, as amended, providing for discontinuance of the regulatory authority of the nuclear regulatory commission and acceptance of that authority by the [board and] agency. For the duration of such an agreement, the [board] agency shall have authority to regulate the radioactive materials covered by the agreement for the protection of the public health and safety and the environment from radiation hazards."

    SECTION 90. A new section of the Radiation Protection Act is enacted to read:

    "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The radiation technical advisory council is terminated on July 1, 2015 pursuant to the provisions of the Sunset Act. The council shall continue to operate according to the provisions of Sections 74-3-2 and 74-3-3 NMSA 1978 until July 1, 2016. Effective July 1, 2016, Sections 74-3-2 and 74-3-3 NMSA 1978 are repealed."

    SECTION 91. A new section of the Radiation Protection Act is enacted to read:

    "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the agency in carrying out the objectives of the Radiation Protection Act, including advising the agency on the adoption and implementation of regulations adopted pursuant to that act, license applications and other duties as determined by the agency."

    SECTION 92. Section 74-4-3 NMSA 1978 (being Laws 1977, Chapter 313, Section 3, as amended) is amended to read:

    "74-4-3. DEFINITIONS.--As used in the Hazardous Waste Act:

         A. "above ground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that are used to contain petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute, and the volume of which is more than ninety percent above the surface of the ground. "Above ground storage tank" does not include any:

             (1) farm, ranch or residential tank used for storing motor fuel for noncommercial purposes;

             (2) pipeline facility, including gathering lines, regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979 or that is an intrastate pipeline facility regulated under state laws comparable to either act;

             (3) surface impoundment, pit, pond or lagoon;

             (4) storm water or wastewater collection system;

             (5) flow-through process tank;

             (6) liquid trap, tank or associated gathering lines or other storage methods or devices related to oil, gas or mining exploration, production, transportation, refining, processing or storage, or to oil field service industry operations;

             (7) tank used for storing heating oil for consumptive use on the premises where stored;

             (8) pipes connected to any tank that is described in Paragraphs (1) through (7) of this subsection; or

             (9) tanks or related pipelines and facilities owned or used by a refinery, natural gas processing plant or pipeline company in the regular course of [their] its refining, processing or pipeline business;

         B. "board" means the environmental improvement board;

         C. "corrective action" means an action taken in accordance with rules of the [board] department to investigate, minimize, eliminate or clean up a release to protect the public health, safety and welfare or the environment;

         D. "director" or "secretary" means the secretary of environment;

         E. "disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters;

         F. "division" or "department" means the department of environment;

         G. "federal agency" means any department, agency or other instrumentality of the federal government and any independent agency or establishment of that government, including any government corporation and the government printing office;

         H. "generator" means any person producing hazardous waste;

         I. "hazardous agricultural waste" means hazardous waste generated as part of the licensed activity by any person licensed pursuant to the Pesticide Control Act or hazardous waste designated as hazardous agricultural waste by the [board] department, but does not include animal excrement in connection with farm, ranch or feedlot operations;

         J. "hazardous substance incident" means any emergency incident involving a chemical or chemicals, including but not limited to transportation wrecks, accidental spills or leaks, fires or explosions, which incident creates the reasonable probability of injury to human health or property;

         K. "hazardous waste" means any solid waste or combination of solid wastes that because of their quantity, concentration or physical, chemical or infectious characteristics may:

             (1) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

             (2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed. "Hazardous waste" does not include any of the following, until the [board] department determines that they are subject to Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq.:

                  (a) drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil or natural gas or geothermal energy;

                  (b) fly ash waste;

                  (c) bottom ash waste;

                  (d) slag waste;

                  (e) flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels;

                  (f) solid waste from the extraction, beneficiation or processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; or

                  (g) cement kiln dust waste;

         L. "manifest" means the form used for identifying the quantity, composition, origin, routing and destination of hazardous waste during transportation from point of generation to point of disposal, treatment or storage;

         M. "person" means an individual, trust, firm, joint stock company, federal agency, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of a state or any interstate body;

         N. "regulated substance" means:

             (1) a substance defined in Section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including a substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended; and

             (2) petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute;

         O. "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended, 86 Stat. 880, or source, special nuclear or byproduct material as defined by the federal Atomic Energy Act of 1954, as amended, 68 Stat. 923;

         P. "storage" means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste;

         Q. "storage tank" means an above ground storage tank or an underground storage tank;

         R. "tank installer" means any individual who installs or repairs a storage tank;

         S. "transporter" means a person engaged in the movement of hazardous waste, not including movement at the site of generation, disposal, treatment or storage;

         T. "treatment" means any method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of a hazardous waste so as to neutralize the waste or so as to render the waste nonhazardous, safer for transport, amenable to recovery, amenable to storage or reduced in volume. "Treatment" includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous;

         U. "underground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain an accumulation of regulated substances and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground. "Underground storage tank" does not include any:

             (1) farm, ranch or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes;

             (2) septic tank;

             (3) pipeline facility, including gathering lines, that is regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979 or that is an intrastate pipeline facility regulated under state laws comparable to either act;

             (4) surface impoundment, pit, pond or lagoon;

             (5) storm water or wastewater collection system;

             (6) flow-through process tank;

             (7) liquid trap, tank or associated gathering lines directly related to oil or gas production and gathering operations;

             (8) storage tank situated in an underground area, such as a basement, cellar, mineworking drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the undesignated floor;

             (9) tank used for storing heating oil for consumptive use on the premises where stored;

             (10) tank exempted by rule of the [board] department after finding that the type of tank is adequately regulated under another federal or state law; or

             (11) pipes connected to any tank that is described in Paragraphs (1) through (10) of this subsection; and

         V. "used oil" means any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities."

    SECTION 93. Section 74-4-4 NMSA 1978 (being Laws 1977, Chapter 313, Section 4, as amended) is amended to read:

    "74-4-4. DUTIES AND POWERS OF THE [BOARD] DEPARTMENT.--

         A. The [board] department shall adopt rules for the management of hazardous waste, as may be necessary to protect public health and the environment, that are equivalent to and no more stringent than federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended:

             (1) for the identification and listing of hazardous wastes, taking into account toxicity, persistence and degradability, potential for accumulation in tissue and other related factors, including flammability, corrosiveness and other hazardous characteristics; provided that, except as authorized by Sections 74-4-3.3 and 74-8-2 NMSA 1978, the [board] department shall not identify or list any solid waste or combination of solid wastes as a hazardous waste that has not been listed and designated as a hazardous waste by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended;

             (2) establishing standards applicable to generators identified or listed under this subsection, including requirements for:

                  (a) furnishing information on the location and description of the generator's facility and on the production or energy recovery activity occurring at that facility;

                  (b) recordkeeping practices that accurately identify the quantities of hazardous waste generated, the constituents of the waste that are significant in quantity or in potential harm to human health or the environment and the disposition of the waste;

                  (c) labeling practices for any containers used for the storage, transport or disposal of the hazardous waste that will identify accurately the waste;

                  (d) use of safe containers tested for safe storage and transportation of the hazardous waste;

                  (e) furnishing the information on the general chemical composition of the hazardous waste to persons transporting, treating, storing or disposing of the waste;

                  (f) implementation of programs to reduce the volume or quantity and toxicity of the hazardous waste generated;

                  (g) submission of reports to the secretary at such times as the secretary deems necessary, setting out the quantities of hazardous waste identified or listed pursuant to the Hazardous Waste Act that the generator has generated during a particular time period and the disposition of all hazardous waste reported, the efforts undertaken during a particular time period to reduce the volume and toxicity of waste generated and the changes in volume and toxicity of waste actually achieved during a particular time period in comparison with previous time periods; and

                  (h) the use of a manifest system and any other reasonable means necessary to assure that all hazardous waste generated is designated for treatment, storage or disposal in, and arrives at, treatment, storage or disposal facilities, other than facilities on the premises where the waste is generated, for which a permit has been issued pursuant to the Hazardous Waste Act; that the generator of hazardous waste has a program in place to reduce the volume or quality and toxicity of waste to the degree determined by the generator to be economically practicable; and that the proposed method of treatment, storage or disposal is that practicable method currently available to the generator that minimizes the present and future threat to human health and the environment;

             (3) establishing standards applicable to transporters of hazardous waste identified or listed under this subsection or of fuel produced from any such hazardous waste or of fuel from such waste and any other material, as may be necessary to protect human health and the environment, including but not limited to requirements for:

                  (a) recordkeeping concerning the hazardous waste transported and its source and delivery points;

                  (b) transportation of the hazardous waste only if properly labeled;

                  (c) compliance with the manifest system referred to in Subparagraph (h) of Paragraph (2) of this subsection; and

                  (d) transportation of all the hazardous waste only to the hazardous waste treatment, storage or disposal facility that the shipper designates on the manifest form to be a facility holding a permit issued pursuant to the Hazardous Waste Act or the federal Resource Conservation and Recovery Act of 1976, as amended;

             (4) establishing standards applicable to distributors or marketers of any fuel produced from hazardous waste, or any fuel that contains hazardous waste, for:

                  (a) furnishing the information stating the location and general description of the facility; and

                  (b) furnishing the information describing the production or energy recovery activity carried out at the facility;

             (5) establishing performance standards as may be necessary to protect human health and the environment applicable to owners and operators of facilities for the treatment, storage or disposal of hazardous waste identified or listed under this section, distinguishing, where appropriate, between new facilities and facilities in existence on the date of promulgation, including requirements for:

                  (a) maintaining the records of all hazardous waste identified or listed under this subsection that is treated, stored or disposed of, as the case may be, and the manner in which the waste was treated, stored or disposed of;

                  (b) satisfactory reporting, monitoring, inspection and compliance with the manifest system referred to in Subparagraph (h) of Paragraph (2) of this subsection;

                  (c) treatment, storage or disposal of all such waste and any liquid that is not a hazardous waste, except with respect to underground injection control into deep injection wells, received by the facility pursuant to such operating methods, techniques and practices as may be satisfactory to the secretary;

                  (d) location, design and construction of hazardous waste treatment, disposal or storage facilities;

                  (e) contingency plans for effective action to minimize unanticipated damage from any treatment, storage or disposal of any hazardous waste;

                  (f) maintenance and operation of the facilities and requiring any additional qualifications as to ownership, continuity of operation, training for personnel and financial responsibility, including financial responsibility for corrective action, as may be necessary or desirable;

                  (g) compliance with the requirements of Paragraph (6) of this subsection respecting permits for treatment, storage or disposal;

                  (h) the taking of corrective action for all releases of hazardous waste or constituents from a solid waste management unit at a treatment, storage or disposal facility, regardless of the time at which waste was placed in the unit; and

                  (i) the taking of corrective action beyond a facility's boundaries where necessary to protect human health and the environment unless the owner or operator of that facility demonstrates to the satisfaction of the secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. Rules adopted and promulgated under this subparagraph shall take effect immediately and shall apply to all facilities operating under permits issued under Paragraph (6) of this subsection and to all landfills, surface impoundments and waste pile units, including any new units, replacements of existing units or lateral expansions of existing units, that receive hazardous waste after July 26, 1982. No private entity shall be precluded by reason of criteria established under Subparagraph (f) of this paragraph from the ownership or operation of facilities providing hazardous waste treatment, storage or disposal services where the entity can provide assurance of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage or disposal of specified hazardous waste;

             (6) requiring each person owning or operating, or both, an existing facility or planning to construct a new facility for the treatment, storage or disposal of hazardous waste identified or listed under this subsection to have a permit issued pursuant to requirements established by the board;

             (7) establishing procedures for the issuance, suspension, revocation and modification of permits issued under Paragraph (6) of this subsection, which rules shall provide for public notice, public comment and an opportunity for a hearing prior to the issuance, suspension, revocation or major modification of any permit unless otherwise provided in the Hazardous Waste Act;

             (8) defining major and minor modifications; and

             (9) establishing procedures for the inspection of facilities for the treatment, storage and disposal of hazardous waste that govern the minimum frequency and manner of the inspections, the manner in which records of the inspections shall be maintained and the manner in which reports of the inspections shall be filed; provided, however, that inspections of permitted facilities shall occur no less often than every two years.

         B. The [board] department shall adopt rules:

             (1) concerning hazardous substance incidents; and

             (2) requiring notification to the department of any hazardous substance incidents.

         C. The [board] department shall adopt rules concerning storage tanks as may be necessary to protect public health and the environment and that, in the case of underground storage tanks, are equivalent to and no more stringent than federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended.

         D. The [board] department shall adopt rules concerning storage tanks that implement the federal Energy Policy Act of 2005, Pub. L. 109-58, as amended, and that are equivalent to and no more stringent than the Energy Policy Act and its grant guidelines and regulations.

         E. Rules adopted pursuant to this section shall include:

             (1) standards for the installation, operation, maintenance, repair and replacement of storage tanks;

             (2) requirements for financial responsibility;

             (3) standards for inventory control;

             (4) standards for the detection of leaks from and the integrity-testing and monitoring of storage tanks;

             (5) standards for the closure and dismantling of storage tanks;

             (6) requirements for recordkeeping;

             (7) requirements for the reporting, containment and remediation of all leaks from any storage tanks; and

             (8) criteria and procedures for classifying a storage tank facility as ineligible, and reclassifying a storage tank facility as eligible, for the delivery, deposit, acceptance or sale of petroleum products.

         F. The criteria and procedures adopted by the [board] department pursuant to this section shall require the department to classify a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products if the storage tank facility has not installed required equipment for spill prevention, overfill protection, leak detection or corrosion protection, including required corrosion protection equipment for a buried metal flexible connector.

         G. The criteria and procedures adopted by the [board] department pursuant to this section may allow the department to classify a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products when the owner or operator has failed to comply with a written warning within a reasonable period of time and the warning concerns:

             (1) improper operation or maintenance of required equipment for spill prevention, overfill protection, leak detection or corrosion protection;

             (2) failure to maintain required financial responsibility for corrective action; or

             (3) operation of the storage tank facility in a manner that creates an imminent threat to the public health and the environment.

         H. Rules adopted by the [board] department pursuant to this section shall defer classifying a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products if the ineligible classification would jeopardize the availability of, or access to, motor fuel in any rural and remote areas.

         I. Rules adopted by the [board] department pursuant to this section shall allow the department to authorize delivery or deposit of petroleum products to:

             (1) an emergency generator tank that is otherwise ineligible for delivery or deposit if a commercial power failure or other declared state of emergency exists and the emergency generator tank provides power supply, stores petroleum and is used solely in connection with an emergency system, legally required standby system or optional standby system; or

             (2) a storage tank facility that is otherwise ineligible for delivery or deposit if the delivery or deposit is necessary to test or calibrate a tank.

         J. Notwithstanding the provisions of Subsection A of this section, the [board] department may adopt rules for the management of hazardous waste and hazardous waste transformation that are more stringent than federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended, if the [board] department determines, after notice and public hearing, that such federal regulations are not sufficient to protect public health and the environment. As used in this subsection, "transformation" means incineration, pyrolysis, distillation, gasification or biological conversion other than composting.

         K. The [board] department shall adopt rules concerning the management of used oil that are equivalent to and no more stringent than federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended.

         L. In the event the [board] department wishes to adopt rules that are identical with regulations adopted by an agency of the federal government, the [board] department, after notice and hearing, may adopt such rules by reference to the federal regulations without setting forth the provisions of the federal regulations."

    SECTION 94. Section 74-4-4.1 NMSA 1978 (being Laws 1981 (S.S.), Chapter 8, Section 5, as amended) is amended to read:

    "74-4-4.1. HAZARDOUS AGRICULTURAL WASTE--DUTIES AND RESPONSIBILITIES OF THE DEPARTMENT OF AGRICULTURE.--

         A. The New Mexico department of agriculture shall be responsible for [the enforcement of all board] implementing

and enforcing regulations adopted pursuant to the Hazardous Waste Act regarding generators of hazardous agricultural waste. The division shall enforce those [board] regulations pertaining to transporters, treaters, storers and disposers of hazardous agricultural waste.

         B. In the exercise of the responsibility prescribed in Subsection A of this section, the New Mexico department of agriculture shall have the same authority as that delegated to the division, including the director.

         C. In the adoption of regulations pertaining to hazardous agricultural waste, the board shall [make a reasonable effort to consult with the department of agriculture prior to the adoption of the regulations. The department of agriculture shall] serve as the technical consultant to the [board] division and New Mexico department of agriculture on matters concerning hazardous agricultural waste. In adopting regulations pursuant to this subsection, the New Mexico department of agriculture shall comply with the provisions of Section 74-4-5 NMSA 1978.

         D. Beginning July 1, 2011, the New Mexico department of agriculture and the division shall assume the duties of the board under the Hazardous Waste Act. All rules of the board relating to hazardous agricultural waste shall remain in force unless the New Mexico department of agriculture or division repeals or amends them."

    SECTION 95. Section 74-4-4.2 NMSA 1978 (being Laws 1981 (1st S.S.), Chapter 8, Section 6, as amended) is amended to read:

    "74-4-4.2. PERMITS--ISSUANCE--DENIAL--MODIFICATION--

SUSPENSION--REVOCATION.--

         A. An application for a permit pursuant to the Hazardous Waste Act shall contain information required pursuant to Section 74-4-4.7 NMSA 1978 or to regulations promulgated by the [board] department and shall include:

             (1) estimates of the composition, quantity and concentration of any hazardous waste identified or listed under Subsection A of Section 74-4-4 NMSA 1978 or combinations of any hazardous waste and other solid waste proposed to be disposed of, treated, transported or stored and the time, frequency or rate at which the waste is proposed to be disposed of, treated, transported or stored; and

             (2) an identification and description of, and other pertinent information about, the site where hazardous waste or the products of treatment of hazardous waste will be disposed of, treated, transported to or stored.

         B. Hazardous waste permits shall require corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage or disposal facility seeking a permit under this section.

         C. The department shall provide timely review on all permit applications. Upon a determination by the secretary that the applicant has met the requirements adopted pursuant to Section 74-4-4 NMSA 1978, the secretary may issue a permit or a permit subject to any conditions necessary to protect human health and the environment for the facility.

         D. The secretary may deny any permit application or modify, suspend or revoke any permit issued pursuant to the Hazardous Waste Act if the applicant or permittee has:

             (1) knowingly and willfully misrepresented a material fact in the application for a permit;

             (2) refused to disclose the information required under the provisions of Section 74-4-4.7 NMSA 1978;

             (3) been convicted in any court, within ten years immediately preceding the date of submission of the permit application, of:

                  (a) a felony or other crime involving moral turpitude; or

                  (b) a crime defined by state or federal statutes as involving or being in restraint of trade, price-fixing, bribery or fraud;

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

             (5) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States; or

             (6) violated any provision of the Hazardous Waste Act, any regulation adopted and promulgated pursuant to that act or any condition of a permit issued under that act.

         E. In making a finding under Subsection D of this section, the secretary may consider aggravating and mitigating factors.

         F. If an applicant or permittee whose permit is being considered for denial or revocation, respectively, on any basis provided by Subsection D of this section has submitted an action plan that has been approved in writing by the secretary, and plan approval includes a period of operation under a conditional permit that will allow the applicant or permittee a reasonable opportunity to demonstrate its rehabilitation, the secretary may issue a conditional permit for a reasonable period of time. In approving an action plan intended to demonstrate rehabilitation, the secretary may consider:

             (1) implementation by the applicant or permittee of formal policies;

             (2) training programs and management control to minimize and prevent the occurrence of future violations;

             (3) installation by the applicant or permittee of internal environmental auditing programs;

             (4) the applicant's release or the permittee's release subsequent to serving a period of incarceration or paying a fine, or both, after conviction of any crime listed in Subsection D of this section; and

             (5) any other factors the secretary deems relevant.

         G. Notwithstanding the provisions of Subsection D of this section:

             (1) a research, development and demonstration permit may be terminated upon the determination by the secretary that termination is necessary to protect human health or the environment; and

             (2) a permit may be modified at the request of the permittee for just cause as demonstrated by the permittee.

         H. No ruling shall be made on permit issuance, major modification, suspension or revocation without an opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing; provided, however, that the secretary may, pursuant to Section 74-4-10 NMSA 1978, order the immediate termination of a research development and demonstration permit whenever the secretary determines that termination is necessary to protect human health or the environment and may order the immediate suspension or revocation of a permit for a facility that has been ordered to take corrective action or other response measures for releases of hazardous waste into the environment.

         I. The secretary shall hold a public hearing on a minor permit modification if the secretary determines that there is significant public interest in the minor modification.

         J. The [board] department shall provide a schedule of fees for businesses generating hazardous waste, conducting permitted hazardous waste management activities or seeking a permit for the management of hazardous waste, including but not limited to:

             (1) a hazardous waste business fee applicable to any business engaged in a regulated hazardous waste activity, which shall be an annual flat fee based on the type of activity;

             (2) a hazardous waste generation fee applicable to any business generating hazardous waste, which shall be based on the quantity of hazardous waste generated annually; however, when any material listed in Paragraph (2) of Subsection K of Section 74-4-3 NMSA 1978 is determined by the [board] department to be subject to regulation under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, the [board] department may set a generation fee under this paragraph for that waste based on its volume, toxicity, mobility and economic impact on the regulated entity;

             (3) a hazardous waste permit application fee, not exceeding the estimated cost of investigating the application and issuing the permit, to be paid at the time the secretary notifies the applicant by certified mail that the application has been deemed administratively complete and a technical review is scheduled; and

             (4) an annual hazardous waste permit

management fee based on and not exceeding the estimated cost

of conducting regulatory oversight of permitted activities.

         K. The department and a business generating hazardous waste, conducting permitted hazardous waste management activities or seeking a permit for the management of hazardous waste may enter into a voluntary fee agreement in addition to and that includes all of the fees required by Subsection J of this section."

    SECTION 96. Section 74-4-4.4 NMSA 1978 (being Laws 1987, Chapter 179, Section 6, as amended) is amended to read:

    "74-4-4.4. STORAGE TANKS--REGISTRATION--INSTALLER CERTIFICATION--FEES.--

         A. By rule, the [board] department shall require an owner of a storage tank to register the tank with the department and impose reasonable conditions for registration, including the submission of plans, specifications and other relevant information relating to the tank. For purposes of this subsection only, the term "owner" means: in the case of a storage tank in use on November 8, 1984 or brought into use after that date, any person who owns the storage tank; and in the case of a storage tank in use before November 8, 1984 but no longer in use on that date, any person who owned the tank immediately before the discontinuation of its use. The owner of a tank taken out of operation on or before January 1, 1974 shall not be required to notify under this subsection. The owner of a tank taken out of operation after January 1, 1974 and removed from the ground prior to November 8, 1984 shall not be required to notify under this subsection. Evidence of current registration pursuant to this subsection shall be available for inspection at the site of the storage tank.

         B. By rule, the [board] department shall require any person who, beginning thirty days after the United States environmental protection agency administrator prescribes the form of notice pursuant to Section 9002(a)(5) of the Resource Conservation and Recovery Act of 1976 and for eighteen months thereafter, deposits a regulated substance into a storage tank to give notice of the registration requirements of Subsection A of this section to the owner and operator of the tank.

         C. By rule, the [board] department may require tank installers to obtain certification from the department and develop procedures for certification that will ensure that storage tanks are installed and repaired in a manner that will not encourage or facilitate leaking. If the [board] department requires certification, it is unlawful for a person to install or repair a storage tank unless [he] the person is a certified tank installer. In accordance with the Uniform Licensing Act, the department may suspend or revoke the certification for a tank installer upon grounds that [he] the tank installer:

             (1) exercised fraud, misrepresentation or deception in obtaining [his] certification;

             (2) exhibited gross incompetence in the installation or repair of a storage tank; or

             (3) was derelict in the performance of a duty as a certified tank installer.

         D. By rule, the [board] department shall provide a schedule of fees sufficient to defray the reasonable and necessary costs of:

             (1) reviewing and acting upon applications for the registration of storage tanks;

             (2) reviewing and acting upon applications for the certification of tank installers; and

             (3) implementing and enforcing any provision of the Hazardous Waste Act applicable to storage tanks and tank installers, including standards for the installation, operation and maintenance of storage tanks and for the certification of tank installers."

    SECTION 97. Section 74-4-5 NMSA 1978 (being Laws 1977, Chapter 313, Section 5, as amended) is amended to read:

    "74-4-5. ADOPTION OF REGULATIONS--NOTICE AND HEARING.--

         A. No regulation shall be adopted, amended or repealed until after a public hearing by the [board] department. Hearings on regulations shall be held in Santa Fe or in an area of the state substantially affected by the regulations. In making its regulations, the [board] department shall give the weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to:

             (1) the character and degree of injury to or interference with the environment or public health; and

             (2) the technical practicability and economic reasonableness of the regulation.

         B. Notice of the hearing shall be given at least thirty 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 notice shall also state where interested persons may secure copies of any proposed regulation. 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 to the [board] department for advance notice of hearings.

         C. At the hearing, the [board] department 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. Any person heard or represented at the hearing shall be given written notice of the action of the [board] department.

         D. The [board] department may designate a hearing officer to take evidence in the hearing. A transcript shall be made of the entire hearing proceedings.

         E. No regulation or amendment or repeal of a regulation adopted by the [board] department shall become effective until thirty days after its filing under the State Rules Act."

    SECTION 98. Section 74-4-14 NMSA 1978 (being Laws 1992, Chapter 43, Section 6) is amended to read:

    "74-4-14. ADMINISTRATIVE ACTIONS--JUDICIAL REVIEW.--

         A. Any person who is or may be affected by any final administrative action of the [board or the secretary] department may appeal to the court of appeals for further relief within thirty days after the action. All appeals shall be upon the record before the [board or the secretary] department.

         B. For appeals of regulations, the date of the action shall be the date of filing of the regulation under the State Rules Act.

         C. Upon appeal, the court of appeals shall set aside the 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.

         D. A stay of enforcement of the action being appealed may be granted after hearing and upon good cause shown:

             (1) by the [board or the secretary, whichever took the action being appealed] department; or

             (2) by the court of appeals if the [board or the secretary] department denies a stay or fails to act upon an application for a stay within sixty days after receipt."

    SECTION 99. A new section of the Hazardous Waste Act is enacted to read:

    "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the department in carrying out the objectives of the Hazardous Waste Act, including advising the department on the adoption and implementation of regulations adopted pursuant to that act, license applications and other duties as determined by the department."

    SECTION 100. Section 74-4A-1 NMSA 1978 (being Laws 1979, Chapter 377, Section 1, as amended) is amended to read:

    "74-4A-1. RADIOACTIVE MATERIAL TRANSPORT--CONDITIONS.--

         A. The [environmental improvement board] department of environment shall have exclusive authority to promulgate regulations prescribing the conditions for transport of radioactive material on the highways. Such conditions shall include the conditions of transport that the [environmental improvement board] department finds necessary to protect the health, safety and welfare of the citizens of the state. Except as specifically preempted by federal law, the state transportation commission shall have the exclusive authority within New Mexico to designate highway routes for the transport of radioactive material. Any rule or regulation adopted by the [environmental improvement board] department that designates highway routes for the transport of radioactive material and that was in effect prior to March 1, 1991 is deemed null and void. The state transportation commission shall incorporate into the record and consider in the initial designation of routes for the transport of radioactive material the evidentiary record from the [environmental improvement board] department public hearings held for the purpose of receiving public comment regarding the designation of routes for the transport of radioactive material.

         B. For the purposes of this section, "radioactive material" means a material or combination of materials that spontaneously emits ionizing radiation. Materials in which the estimated specific activity is not greater than 0.002 microcuries per gram of material, and in which the radioactivity is essentially uniformly distributed, are not considered to be radioactive materials. "Radioactive material" includes but is not limited to:

             (1) materials associated with the operation and decommissioning of nuclear reactors and the supporting fuel cycle;

             (2) industrial radioisotope sources;

             (3) radioactive materials used in nuclear medicine;

             (4) radioactive materials used for research, education or training; and

             (5) radioactive wastes;

but does not include radioactive material the regulation of which has been specifically preempted by federal law.

         C. The department of environment shall have the authority to impose fines not to exceed one thousand dollars ($1,000) as set by regulation of the [environmental improvement board] department for a violation of the [board's] department's regulations pertaining to the transport of radioactive materials.

         D. Nothing in this section shall be construed to alter the obligation of the state under the April 3, 1974 agreement between the state and the atomic energy commission for the discontinuance of certain commission regulatory authority and responsibility."

    SECTION 101. Section 74-4A-4 NMSA 1978 (being Laws 1981, Chapter 374, Section 3, as amended) is amended to read:

    "74-4A-4. DEFINITIONS.--As used in the Radioactive and Hazardous Materials Act:

         A. "committee" means the joint interim legislative radioactive and hazardous materials committee;

         B. "disposal" means the long-term isolation of radioactive material, including long-term monitored storage [which] that permits retrieval of the radioactive material stored and includes the temporary or permanent disposal of all hazardous wastes;

         C. "environmental evaluation group" means the independent state review facility administratively attached to New Mexico institute of mining and technology and funded by the United States department of energy;

         D. "hazardous waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment 1plant or air pollution control facility or other discarded material, including solid, liquid, semisolid or containing gaseous material resulting from industrial, commercial, mining or agricultural operations or from community activities [which] that because of its quantity, concentration or physical, chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or pose a substantial [present] current or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed. The term "hazardous waste" does not include solid or dissolved material in domestic sewage or animal excrement in connection with farm, ranch or feedlot operations or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under Section 402 of the federal Water Pollution Control Act, as amended, as the provisions exist on January 1, 1981, or source, special or byproduct material as defined in the federal Atomic Energy Act of 1954, as amended, as these definitions exist on January 1, 1981, or any of the following, until the [board] department of environment determines that they are subject to Subtitle C of the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6921 et seq.): drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil or natural gas or geothermal energy, any fly ash waste, bottom ash waste, slag waste, flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels, solid waste from the extraction, beneficiation or processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore or cement kiln dust waste;

         E. "high-level waste" means the highly radioactive wastes resulting from the reprocessing of spent nuclear fuel and includes both the liquid waste [which] that is produced directly in reprocessing and any solid material into which such liquid waste is made;

         F. "low-level waste" means material contaminated with radioactive elements emitting beta or gamma particles or with traces of transuranic elements in concentrations of less than one hundred nanocuries per gram;

         G. "mixed waste" means any mixture of hazardous waste regulated under the Hazardous Waste Act and radioactive waste regulated under the federal Atomic Energy Act of 1954;

         H. "radioactive materials" means any material or combination of materials [which] that spontaneously emits ionizing radiation. Materials in which the estimated specific activity is not greater than 0.002 microcuries per gram of material, and in which the radioactivity is essentially uniformly distributed, are not considered to be radioactive materials;

         I. "radioactive waste" means high-level waste, transuranic contaminated waste and low-level waste;

         J. "spent fuel" means nuclear fuel that has been irradiated in and recovered from a civilian nuclear power plant;

         K. "task force" means the radioactive waste consultation task force; and

         L. "transuranic contaminated waste" means material contaminated with radionuclides emitting alpha radiation having an atomic number greater than ninety-two, including neptunium, plutonium, americium and curium, in concentrations of greater than one hundred nanocuries per gram."

    SECTION 102. A new section of the Radioactive and Hazardous Materials Act is enacted to read:

    "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The radioactive waste consultation task force is terminated on July 1, 2013 pursuant to the provisions of the Sunset Act. The task force shall continue to operate according to the provisions of Sections 74-4A-6 through

74-4A-8 NMSA 1978 until July 1, 2014. Effective July 1, 2014, Sections 74-4A-6 through 74-4A-8 NMSA 1978 are repealed."

    SECTION 103. A new section of the Radioactive and Hazardous Materials Act is enacted to read:

    "[NEW MATERIAL] ENVIRONMENTAL BOARD DUTIES.--The environmental improvement board shall assist the department of environment in carrying out the objectives of the Radioactive and Hazardous Materials Act, including advising the department on the adoption and implementation of regulations adopted pursuant to that act and other duties as determined by the department."

    SECTION 104. A new section of the Water Quality Act is enacted to read:

    "[NEW MATERIAL] DUTIES AND POWERS OF DEPARTMENT.--The department:

         A. shall adopt, promulgate and publish regulations 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 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 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, the department shall give weight it deems appropriate to all relevant facts and circumstances, including:

             (1) character and degree of injury to or interference with health, welfare, environment and property;

             (2) the public interest, including the social and economic value of the sources of water contaminants;

             (3) 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) successive uses, including but not limited to domestic, commercial, industrial, pastoral, agricultural, wildlife and recreational uses;

             (5) feasibility of a user or a subsequent user treating the water before a subsequent use;

             (6) property rights and accustomed uses; and

             (7) federal water quality requirements;

         B. 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;

         C. 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;

         D. shall specify in regulations the measures to be taken to prevent water pollution and to monitor water quality. The department may adopt regulations for particular industries. The department shall adopt regulations for the dairy industry and the copper industry. The department 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 of other interested stakeholders to advise the constituent agency on appropriate regulations to be proposed for adoption by the department. The regulations shall be developed and adopted in accordance with a schedule approved by the department. The schedule shall incorporate an opportunity for public input and stakeholder negotiations;

         E. 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;

         F. 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; and

         G. 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 and 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."

    SECTION 105. 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. "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;

         B. "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 by-product material as defined by the federal Atomic Energy Act of 1954;

         C. "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; and

         S. "department" means the department of environment."

    SECTION 106. Section 74-6-3 NMSA 1978 (being Laws 1967, Chapter 190, Section 3, as amended) is amended to read:

    "74-6-3. WATER QUALITY CONTROL COMMISSION CREATED.--

         A. There is created the "water quality control commission" consisting of:

             (1) the secretary of environment or a member of the secretary's staff designated by the secretary;

             (2) the secretary of [health or a member of the secretary's staff designated by the secretary] energy, minerals and natural resources or a member of the secretary's staff designated by the secretary;

             (3) the director of the department of game and fish or a member of the director's staff designated by the director;

             [(4) the state engineer or a member of the state engineer's staff designated by the state engineer;

             (5) the chair of the oil conservation commission or a member of the chair's staff designated by the chair;

             (6) the director of the state parks division of the energy, minerals and natural resources department or a member of the director's staff designated by the director;

             (7)] (4) the director of the New Mexico department of agriculture or a member of the director's staff designated by the director;

             [(8) the chair of the soil and water conservation commission or a soil and water conservation district supervisor designated by the chair;

             (9)] (5) the director of the bureau of geology and mineral resources at the New Mexico institute of mining and technology or a member of the director's staff designated by the director;

             [(10)] (6) a municipal [or county] government representative; and

             [(11) four] (7) three representatives of the public to be appointed by the governor for terms of four years and who shall be compensated from the budgeted funds of the department of environment in accordance with the provisions of the Per Diem and Mileage Act. [At least] One member appointed by the governor shall be a member of a New Mexico Indian tribe or pueblo. One member appointed by the governor shall be employed in an industry regulated under the Water Quality Act and one member shall represent environmental interests. No more than two of the public members appointed by the governor shall be from the same political party.

         B. A member of the commission shall not receive, or shall not have received during the previous two years, a significant portion of the member's income directly or indirectly from permit holders or applicants for a permit. A member of the commission shall, upon the acceptance of the member's appointment and prior to the performance of any of the member's duties, file a statement of disclosure with the secretary of state disclosing any amount of money or other valuable consideration, and its source, the value of which is in excess of ten percent of the member's gross personal income in each of the preceding two years, that the member received directly or indirectly from permit holders or applicants for permits required under the Water Quality Act. A member of the commission shall not participate in the consideration of an appeal if the subject of the appeal is an application filed or a permit held by an entity that either employs the commission member or from which the commission member received more than ten percent of the member's gross personal income in either of the preceding two years.

         C. The commission shall elect a chair and other necessary officers and shall keep a record of its proceedings.

         D. A majority of the commission constitutes a quorum for the transaction of business, but no action of the commission is valid unless concurred in by six or more members present at a meeting.

         E. The commission is the state water pollution control agency for this state for all purposes of the federal act and the wellhead protection and sole source aquifer programs of the federal Safe Drinking Water Act of 1974 and may take all action necessary and appropriate to secure to this state, its political subdivisions or interstate agencies the benefits of that act and those programs.

         F. The commission is administratively attached, as defined in the Executive Reorganization Act, to the department [of environment]."

    SECTION 107. 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.--The commission:

         A. 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. shall not adopt or promulgate a standard or regulation that exceeds a grant of rulemaking authority listed in the statutory section of the Water Quality Act authorizing the standard or regulation;

         D.] C. shall adopt water quality standards for surface and ground waters of the state based on credible scientific data and other evidence appropriate under the Water Quality Act. The standards shall 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 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 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 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 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, the commission shall give weight it deems appropriate to all relevant facts and circumstances, including:

             (1) character and degree of injury to or interference with health, welfare, environment and property;

             (2) the public interest, including the social and economic value of the sources of water contaminants;

             (3) 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) successive uses, including but not limited to domestic, commercial, industrial, pastoral, agricultural, wildlife and recreational uses;

             (5) feasibility of a user or a subsequent user treating the water before a subsequent use;

             (6) property rights and accustomed uses; and

             (7) federal water quality requirements;

         F.] D. shall assign responsibility for administering [its] the department's regulations relating to the Water Quality Act 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.] E. 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.] F. may grant an individual variance from any regulation of the [commission] department 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] department 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; and

         [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.] G. 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."

    SECTION 108. 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, the [commission] department may require persons to obtain from a constituent agency designated by the commission a permit for the discharge of any water contaminant or for the disposal or reuse of septage or sludge.

         B. The [commission] department shall adopt regulations 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] department shall by regulation 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, considering site-specific conditions. After regulations have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the regulations. 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 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 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;

                  (c) been convicted of a felony or other crime involving moral turpitude;

                  (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] department shall by regulation 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] department may adopt regulations 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, the [commission] department 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;

             (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] department shall provide by regulation 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 or water quality standards of the commission, department or any applicable federal laws, regulations or standards.

         M. A permit may be terminated or modified by the 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, standard of performance or water quality standards;

             (4) violation of any applicable state or federal effluent 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 constituent agency denies, terminates or modifies a permit or grants a permit subject to condition, the 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 109. 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] department by regulation may require every applicant for a permit to dispose or use septage or sludge, or within a source category designated by the [commission] department, to file with the appropriate constituent agency a disclosure statement. The disclosure statement shall be submitted on a form developed by the [commission] department and the department of public safety. The [commission] department 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] department shall adopt regulations 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.

         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 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 110. 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 adopted by the [commission under Subsection H] department as provided in Subsections J and K of 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 adopted by the [commission] department 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 111. 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--NOTICE AND HEARING.--

         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 or department adopt, amend or repeal a regulation or water quality standard. The commission or department 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 or department for advance notice of hearings and who have provided the commission or department 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 or department 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 or department 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 or department.

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

    SECTION 112. 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] department 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 department or 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 department's or 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 department's or 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 department or commission or by the court of appeals if the department or commission denies a stay within ninety days after receipt of the application."

    SECTION 113. 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 and department and to the owner or occupant of the premises investigated;

         C. report to the commission, to the department 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 of the federal government or the [commission] department; 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 or the department 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 of the federal government or the [commission] department; 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 for promulgation by the commission or department; 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, department 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 114. 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 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 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 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 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 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 or standard of the commission or department, the commission may accept an assurance of discontinuance of any act or practice deemed in violation of the Water Quality Act, or any regulation or standard 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] 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 115. 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, to the department 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] department 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] department to adopt any regulation 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 or department 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 and water quality standards and in an action for enforcement of the Water Quality Act and regulations 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 of the [commission] department."

    SECTION 116. 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, the department 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, the department 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, the department 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, the department 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] department shall promulgate regulations to implement the provisions of this section, including regulations specifying business records entitled to protection as confidential.

         C. An officer, employee or authorized representative of the commission, the department 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 117. Section 74-6A-4 NMSA 1978 (being Laws 1991, Chapter 172, Section 4, as amended) is amended to read:

    "74-6A-4. WASTEWATER FACILITY CONSTRUCTION LOAN FUND CREATED--ADMINISTRATION.--

         A. There is created in the state treasury a revolving loan fund to be known as the "wastewater facility construction loan fund", which shall be administered by the division as agent for the commission and operated as a separate account. The [commission] division is authorized to establish procedures and adopt regulations as required to administer the fund in accordance with the Clean Water Act and state law. Any regulations relating to the issuance of bonds and the expenditure of proceeds of bond issues shall be approved by the board. The commission shall, whenever possible, coordinate application procedures and funding cycles with the New Mexico Community Assistance Act.

         B. The following shall be deposited directly in the fund:

             (1) grants from the federal government or its agencies allotted to the state for capitalization of the fund;

             (2) funds as appropriated by the legislature to implement the provisions of the Wastewater Facility Construction Loan Act or to provide state matching funds that are required by the terms of any federal grant under the Clean Water Act;

             (3) loan principal, interest and penalty payments if required by the terms of any federal grant under the Clean Water Act;

             (4) money transferred from the account as needed to fulfill requirements of the Clean Water Act; and

             (5) any other public or private money dedicated to the fund.

         C. Money in the fund is appropriated for expenditure by the commission in a manner consistent with the terms and conditions of the federal capitalization grants and the Clean Water Act and may be used:

             (1) to provide loans for the construction or rehabilitation of wastewater facilities;

             (2) to purchase, refund or refinance obligations incurred by local authorities in the state for wastewater facilities where the obligations were incurred and construction commenced after March 7, 1985;

             (3) to guarantee, or purchase insurance for, obligations of local authorities to improve credit market access or reduce interest rates;

             (4) to provide a source of revenue or security for the payments of principal and interest on bonds recommended by the commission and issued by the board if the proceeds of the bonds are deposited in the fund to the extent provided in the terms of the federal grant;

             (5) to provide loan guarantees for similar revolving funds established by local authorities;

             (6) to fund the administrative expenses of the board, the commission and the division necessary to implement the provisions of the Wastewater Facility Construction Loan Act, including but not limited to costs of servicing loans and issuing bonds, fund start-up costs, financial management and legal consulting fees and reimbursement costs for support services from other state agencies; and

             (7) to fund other programs for which the federal government authorizes use of wastewater grants or to provide for any other expenditure consistent with the Clean Water Act grant program and state law.

         D. Pursuant to regulations adopted by the [commission] division, the division may impose and collect an administrative fee from each local authority that receives financial assistance from the fund, which fee shall not exceed five percent of the total loan amount and which shall be deposited in the clean water administrative fund.

         E. Money not currently needed for the operation of the fund or otherwise dedicated may be invested according to the provisions of Chapter 6, Article 10 NMSA 1978, and all interest earned on such investments shall be credited to the fund. Money remaining in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the credit of the fund.

         F. Acting as agent for the commission, the division shall maintain full authority for the operation of the fund in accordance with applicable federal and state law, including but not limited to preparing the annual intended use plan and ensuring that loan recipients are on the state priority list or otherwise satisfy Clean Water Act requirements.

         G. The division shall establish fiscal controls and accounting procedures that are sufficient to ensure proper accounting for fund payments, disbursements and balances and shall provide an annual report and an annual independent audit on the fund to the governor and to the United States environmental protection agency as required by the Clean Water Act."

    SECTION 118. Section 74-6A-8 NMSA 1978 (being Laws 1991, Chapter 172, Section 6) is amended to read:

    "74-6A-8. FINANCIAL ASSISTANCE--CRITERIA.--

         A. Financial assistance shall be provided only to local authorities that:

             (1) meet the requirements for financial capability set by the division to assure sufficient revenues to operate and maintain the wastewater facility for its useful life and to repay the financial assistance;

             (2) agree to operate and maintain the wastewater facility so that the facility will function properly over its structural and material design life;

             (3) agree to maintain separate project accounts, to maintain project accounts properly in accordance with generally accepted governmental accounting standards and to conduct an audit of the project's financial records;

             (4) provide a written assurance, signed by an attorney, that the local authority has or will acquire proper title, easements and rights of way to the property upon or through which the wastewater facility proposed for funding is to be constructed or extended;

             (5) require the contractor of the wastewater facility construction project to post a performance and payment bond in accordance with the requirements of Section 13-4-18 NMSA 1978 and its subsequent amendments and successor provisions;

             (6) provide a written notice of completion and start of operation of the wastewater facility;

             (7) appear on the priority list of the fund, regardless of rank on such list; and

             (8) provide such information to the division [as required by the commission] in order to comply with the provisions of the Clean Water Act and state law.

         B. Loans shall be made only to local authorities that establish one or more dedicated sources of revenue to repay the money received from the commission and to provide for operation, maintenance and equipment replacement expenses. A local authority, any existing statute to the contrary notwithstanding, may do any of the following:

             (1) obligate itself to pay to the commission at periodic intervals a sum sufficient to provide all or any part of bond debt service with respect to the bonds recommended by the commission and issued by the board to fund the loan for the wastewater facility project of the local authority and pay over the debt service to the account of the wastewater facility project for deposit to the fund;

             (2) fulfill any obligation to pay the commission by the issuance of bonds, notes or other obligations in accordance with the laws authorizing issuance of local authority obligations; provided, however, that notwithstanding the provisions of [Sections] Section 4-54-3 or 6-15-5 NMSA 1978 or other statute or law requiring the public sale of local authority obligations, such obligations may be sold at private sale to the commission at the price and upon the terms and conditions the local authority shall determine;

             (3) levy, collect and pay over to the commission and obligate itself to continue to levy, collect and pay over to the commission the proceeds of one or more of the following:

                  (a) sewer or waste disposal service fees or charges;

                  (b) licenses, permits, taxes and fees;

                  (c) special assessments on the property served or benefited by the wastewater facility project; [and] or

                  (d) other revenue available to the local authority;

             (4) undertake and obligate itself to pay its contractual obligation to the commission solely from the proceeds from any of the sources specified in Paragraph (3) of this subsection or, in accordance with the laws authorizing issuance of local authority obligations, impose upon itself a general obligation pledge to the commission additionally secured by a pledge of any of the sources specified in Paragraph (3) of this subsection; [and] or

             (5) enter into agreements, perform acts and delegate functions and duties as its governing body shall determine is necessary or desirable to enable the division as agent for the commission to fund a loan to the local authority to aid it in the construction or acquisition of a wastewater facility project.

         C. Each loan made by the division as agent for the commission shall provide that repayment of the loan shall begin not later than one year after completion of construction of the wastewater facility project for which the loan was made and shall be repaid in full no later than twenty years after completion of the construction. All principal and interest on loan payments shall be deposited in the fund.

         D. Financial assistance shall be made with an annual interest rate to be five percent or less as determined by the commission.

         E. A zero-percent interest rate may be approved by the division when the following conditions have been met by the local authority:

             (1) the local authority's average user cost is at least fifteen dollars ($15.00) per month or a higher amount as determined by the commission; and

             (2) the local authority's median household income is less than three-fourths of the statewide nonmetropolitan median household income.

         F. A local authority may use the proceeds from financial assistance received under the Wastewater Facility Construction Loan Act to provide a local match or any other nonfederal share of a wastewater facility construction project as allowed pursuant to the Clean Water Act.

         G. Financial assistance received pursuant to the Wastewater Facility Construction Loan Act shall not be used by a local authority on any wastewater facility project constructed in fulfillment or partial fulfillment of requirements made of a subdivider under the provisions of the Land Subdivision Act or the New Mexico Subdivision Act.

         H. Financial assistance shall be made only to local authorities that employ or contract with a registered professional engineer to provide and be responsible for engineering services on the wastewater facility project. Such services include but are not limited to an engineering report, construction contract documents, supervision of construction and start-up services.

         I. Financial assistance shall be made only for eligible items. For financial assistance composed entirely of state funds, eligible items include but are not limited to the costs of engineering feasibility reports, contracted engineering design, inspection of construction, special engineering services, start-up services, contracted construction, materials purchased or equipment leased for force account construction, land or acquisition of existing facilities, but eligible items do not include the costs of water rights and local authority administrative costs. For financial assistance made from federal funds, eligible items are those identified pursuant to the Clean Water Act.

         J. In the event of default by the local authority, the commission may enforce its rights by suit or mandamus or may utilize all other available remedies under state law."

    SECTION 119. Section 74-6A-9 NMSA 1978 (being Laws 1991, Chapter 172, Section 7) is amended to read:

    "74-6A-9. COMMISSION--DIVISION--POWERS.--

         A. In administering the Wastewater Facility Construction Loan Act, the commission shall have the following powers, which may be implemented by the division, in addition to those specified in the Water Quality Act:

             (1) to provide financial assistance to local authorities to finance all or part of a wastewater facility, including all forms of assistance for which the fund may be used pursuant to the Wastewater Facility Construction Loan Act;

             (2) to adopt [recommending] resolutions recommending that the board issue bonds or refunding bonds pursuant to the provisions of the Wastewater Facility Construction Loan Act;

             (3) to execute agreements concerning state contributions to the fund made pursuant to the Clean Water Act, including obligating the commission to pay a portion of the estimated reasonable cost of a wastewater facility of a local authority as may be required to meet the water quality goals of the Clean Water Act and the state;

             (4) to foreclose upon, attach or condemn any wastewater facility, property or interest in the facility pledged, mortgaged or otherwise available as security for a project financed in whole or in part pursuant to the Wastewater Facility Construction Loan Act in the event of a default by a local authority;

             (5) to acquire and hold title to or leasehold interest in real and personal property and to sell, convey or lease that property for the purpose of satisfying a default or enforcing the provisions of a loan agreement;

             (6) through its agent the division, to manage the fund, to grant and administer financial assistance to local authorities and to apply for and accept grants, including but not limited to capitalization grant awards made to the state in accordance with the Clean Water Act and the Wastewater Facility Construction Loan Act;

             (7) to appoint and employ attorneys, financial advisors, underwriters and other experts and agents and employees as the business of the commission may require;

             (8) to sue or be sued and to prosecute and defend, at law or in equity, in any court having jurisdiction over the subject matter and the parties to the matter;

             (9) to collect application, origination and administrative fees from the local authority, the total of which for any loan shall not exceed four percent of the value of the loan requested or authorized; and

             [(10) to adopt regulations necessary and appropriate to implement the provisions of the Wastewater Facility Construction Loan Act; and

             (11)] (10) to have and exercise all the rights and powers necessary, incidental to or implied from the specific powers enumerated in this section.

         B. Specific powers enumerated in this section shall not limit any power necessary or appropriate to carry out the purposes and intent of the Wastewater Facility Construction Loan Act.

         C. The commission shall use accounting, audit and fiscal procedures conforming to generally accepted government accounting standards and shall otherwise prepare audits and budgets in accordance with state law. The fiscal year of the commission shall coincide with the fiscal year of the state.

         D. The commission shall deliver an annual report during the first week of each regular session of the legislature on the status of the wastewater facility construction loan program and the fund to the governor and legislature.

         E. The division may adopt regulations necessary and appropriate to implement the provisions of the Wastewater Facility Construction Loan Act."

    SECTION 120. Section 74-6A-14 NMSA 1978 (being Laws 1991, Chapter 172, Section 12) is amended to read:

    "74-6A-14. VALIDATION.--All outstanding securities of the state and of all local authorities, all loan or other agreements entered into between the state or the division and any local authority, all regulations promulgated by the [commission] division and all acts and proceedings taken by or on behalf of the state or any local authority with respect to the financing of wastewater facilities are [hereby] validated, ratified, approved and confirmed. To the extent necessary to carry out its purposes, the commission shall treat any bonds, obligations or agreements of the state or the division that were entered into prior to [the effective date hereof] April 4, 1991 for the purpose of effecting the provisions of the Wastewater Facility Construction Loan Act or the Clean Water Act as if such bonds, obligations or agreements were those recommended by the commission and issued by the board."

    SECTION 121. Section 74-6B-3 NMSA 1978 (being Laws 1990, Chapter 124, Section 3, as amended) is amended to read:

    "74-6B-3. DEFINITIONS.--As used in the Ground Water Protection Act:

         A. "above ground storage tank" means a single tank or a combination of tanks, including underground pipes connected thereto, that are used to contain petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute, and the volume of which is more than ninety percent above the surface of the ground. The term does not include any:

             (1) farm, ranch or residential tank used for storing motor fuel for noncommercial purposes;

             (2) pipeline facility, including gathering lines, that are regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979 or that is an intrastate pipeline facility regulated under state laws comparable to either act;

             (3) surface impoundment, pit, pond or lagoon;

             (4) storm water or wastewater collection system;

             (5) flow-through process tank;

             (6) liquid trap, tank or associated gathering lines or other storage methods or devices related to oil, gas or mining exploration, production, transportation, refining, processing or storage, or oil field service industry operations;

             (7) tank used for storing heating oil for consumptive use on the premises where stored;

             (8) pipes connected to any tank that is described in Paragraphs (1) through (7) of this subsection; or

             (9) tanks or related pipelines and facilities owned or used by a refinery, natural gas processing plant or pipeline company in the regular course of [their] its refining, processing or pipeline business;

         B. "board" means the environmental improvement board;

         C. "corrective action" means an action taken in accordance with rules of the [board] department to investigate, minimize, eliminate or clean up a release to protect the public health, safety and welfare or the environment;

         D. "department" means the department of environment;

         E. "operator" means any person in control of or having responsibility for the daily operation of a storage tank;

         F. "owner":

             (1) means:

                  (a) in the case of a storage tank in use or brought into use on or after November 8, 1984, a person who owns a storage tank used for storage, use or dispensing of regulated substances; and

                  (b) in the case of a storage tank in use before November 8, 1984 but no longer in use after that date, a person who owned the tank immediately before the discontinuation of its use; and

             (2) excludes, for purposes of tank registration requirements only, a person who:

                  (a) had an underground storage tank taken out of operation on or before January 1, 1974;

                  (b) had an underground storage tank taken out of operation after January 1, 1974 and removed from the ground prior to November 8, 1984; or

                  (c) had an above ground storage tank taken out of operation on or before July 1, 2001;

         G. "person" means an individual or any legal entity, including all governmental entities;

         H. "regulated substance" means:

             (1) a substance defined in Section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, but not including a substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976; and

             (2) petroleum, including crude oil or a fraction thereof, that is liquid at standard conditions of temperature and pressure of sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute;

         I. "release" means a spilling, leaking, emitting, discharging, escaping, leaching or disposing from a storage tank into ground water, surface water or subsurface soils in amounts exceeding twenty-five gallons;

         J. "secretary" means the secretary of environment;

         K. "site" means a place where there is or was at a previous time one or more storage tanks and may include areas contiguous to the actual location or previous location of the tanks;

         L. "storage tank" means an above ground storage tank or an underground storage tank; and

         M. "underground storage tank" means a single tank or combination of tanks, including underground pipes connected thereto, that [are] is used to contain an accumulation of regulated substances and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground. The term does not include any:

             (1) farm, ranch or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes;

             (2) septic tank;

             (3) pipeline facility, including gathering lines, regulated under the federal Natural Gas Pipeline Safety Act of 1968 or the federal Hazardous Liquid Pipeline Safety Act of 1979 or that is an intrastate pipeline facility regulated under state laws comparable to either act;

             (4) surface impoundment, pit, pond or lagoon;

             (5) storm water or wastewater collection system;

             (6) flow-through process tank;

             (7) liquid trap, tank or associated gathering lines directly related to oil or gas production and gathering operations;

             (8) storage tank situated in an underground area, such as a basement, cellar, mineworking drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the undesignated floor;

             (9) tank used for storing heating oil for consumptive use on the premises where stored;

             (10) tank exempted by rule of the [board] department after finding that the type of tank is adequately regulated under another federal or state law; or

             (11) pipes connected to any tank that is described in Paragraphs (1) through (10) of this subsection."

    SECTION 122. Section 74-6B-7 NMSA 1978 (being Laws 1990, Chapter 124, Section 7, as amended) is amended to read:

    "74-6B-7. CORRECTIVE ACTION FUND CREATED--AUTHORIZATION

FOR EXPENDITURES.--

         A. There is created the "corrective action fund". The fund is intended to provide for financial assurance coverage and shall be used by the department to the extent that revenues are available to take corrective action in response to a release, to pay for the costs of a minimum site assessment in excess of ten thousand dollars ($10,000), to pay the state's share of federal leaking underground storage tank trust fund cleanup costs as required by the federal Resource Conservation and Recovery Act of 1976 and to make payments to or on behalf of owners and operators for corrective action taken in accordance with Section 74-6B-13 NMSA 1978. The legislature may appropriate up to thirty percent of the annual distribution to the fund pursuant to Section 7-1-6.25 NMSA 1978 to the department to match federal funds, for underground contamination cleanup and to address water needs. The owner or operator of a site shall not use the corrective action fund as evidence of financial assurance to satisfy claims of third parties.

         B. The [board after recommendations from the storage tank committee] department shall adopt rules for establishing priorities for corrective action at sites contaminated by storage tanks. The priorities for corrective action shall be based on public health, safety and welfare and environmental concerns. In adopting rules pursuant to this subsection, the [board] department shall follow the procedures of Section 74-4-5 NMSA 1978. The provisions of that section relating to all other matters in connection with the adoption of rules shall apply. The department shall establish priority lists of sites in accordance with the rules adopted by the [board] department.

         C. The department shall make expenditures from the corrective action fund in accordance with rules adopted by the [board or the] secretary for corrective action taken by the state, owners or operators at sites contaminated by storage tanks; provided that:

             (1) payments may be made only for corrective action taken by persons qualified by the department to perform the work pursuant to rules adopted by the [board] department;

             (2) no expenditures from the fund shall be paid to or on behalf of an owner or operator for corrective action, other than a minimum site assessment or sampling, if the corrective action is conducted by a person that is a subsidiary or parent of or that is otherwise affiliated with the owner or operator;

             (3) expenditures shall be made by the department to perform corrective action, to pay for the costs of minimum site assessment in excess of ten thousand dollars ($10,000) or to make payments to or on behalf of an owner or operator in accordance with Section 74-6B-13 NMSA 1978;

             (4) any corrective action taken shall be taken at sites in the order of priority appearing on the priority lists, unless an emergency threat to public health, safety and welfare or to the environment exists;

             (5) when available revenues are limited and the fund can no longer be approved as a financial responsibility mechanism, priorities for expenditures from the fund shall also be based on financial need as determined by rules adopted by the [board] department; and

             (6) corrective action involving remediation shall follow a competitive bidding procedure based on technical merit and cost effectiveness.

         D. No expenditure from the corrective action fund shall be authorized for corrective action at sites owned or operated by the United States or any agency or instrumentality thereof.

         E. Nothing in this section authorizes payments for the repair or replacement of a storage tank or equipment.

         F. Nothing in this section authorizes payments or commitments for payments in excess of the funds available.

         G. The [board] department, by rule, may provide for a specific amount to be reserved in the fund for emergencies. The amount reserved may be expended by the department only for corrective action necessary when an emergency threat to public health, safety and welfare or to the environment exists.

         H. Within sixty days after receipt of notification that the corrective action fund has become incapable of paying for assured corrective actions, the owner or operator shall obtain alternative financial assurance acceptable to the department."

    SECTION 123. Section 74-6B-8 NMSA 1978 (being Laws 1990, Chapter 124, Section 8, as amended) is amended to read:

    "74-6B-8. LIABILITY--COST RECOVERY.--

         A. An owner or operator of a storage tank from which a release has occurred shall be strictly liable for the owner's, operator's and department's cost of taking corrective action at the site.

         B. An owner or operator otherwise liable under Subsection A of this section shall not be liable for expenditures from the state corrective action fund associated with corrective action at the site if [he] the owner or operator has proved to the department that [he has complied with the following]:

             (1) the owner or operator:

                  (a) is in substantial compliance with all of the requirements and provisions of rules adopted by the [board] department to fulfill the requirements of Paragraphs (1) through (7) of Subsection C of Section 74-4-4 NMSA 1978;

                  (b) has paid all storage tank fees required by Sections 74-4-4.4 and 74-6B-9 NMSA 1978;

                  (c) has conducted a minimum site assessment in accordance with rules of the [board] department and, if contamination is found, has taken action to prevent continuing contamination; and

                  (d) has cooperated in good faith with the department and has granted access to the department for investigation, cleanup and monitoring; and

             (2) for sites where storage tanks were removed or properly abandoned prior to March 7, 1990, the owner or [the] operator:

                  (a) has paid all storage tank fees required by Section 74-4-4.4 NMSA 1978 and a two-hundred-dollar ($200) fee per site;

                  (b) has conducted a minimum site assessment in accordance with rules of the [board] department; and

                  (c) has cooperated in good faith with the department and has granted access to the department for investigation, cleanup and monitoring.

         C. In the event that the department determines that an owner or operator has not complied with the requirements of Subsection B of this section, the department may bring an action in district court against the owner or operator to recover expenditures from the corrective action fund incurred by the department in taking corrective action at the site. In addition, the department may bring an action in district court to recover any expenditures made of federal funds from the federal leaking underground storage tank trust fund in taking corrective action. These expenditures made from the corrective action fund and from federal funds include [but are not limited to] costs of investigating a release and undertaking corrective action, administrative costs and reasonable attorney fees. Expenditures recovered under this section, except for any recovered federal funds, shall be deposited into the corrective action fund.

         D. The department has a right of subrogation to any insurance policies in existence at the time of the release to the extent of any rights the owner or operator of a site may have had under that policy and has a right of subrogation against any third party who caused or contributed to the release. The right of subrogation shall apply regardless of any defenses available to the owner or operator under Subsection B of this section. The right of subrogation shall apply to sites where corrective action is taken by owners or operators under Section 74-6B-13 NMSA 1978 as well as to sites where corrective action is taken by the state."

    SECTION 124. Section 74-6B-13 NMSA 1978 (being Laws 1992, Chapter 64, Section 10, as amended) is amended to read:

    "74-6B-13. PAYMENT PROGRAM.--

         A. Unless provided otherwise in this section, all costs in excess of ten thousand dollars ($10,000) that are necessary to perform a minimum site assessment in accordance with the rules of the [board] department shall be paid from the corrective action fund.

         B. Payment of the cost of corrective action, including the cost of a minimum site assessment, shall be made by the department following application and proper documentation of the costs and in accordance with rules adopted by the secretary establishing eligible and ineligible costs. Ineligible costs include attorney fees, repair or upgrade of storage tanks, loss of revenue and costs of monitoring a contractor.

         C. The department shall adopt rules to provide for payments from the corrective action fund, to the extent that money is available in the fund, to persons who cannot afford to pay all or a portion of the initial ten-thousand-dollar ($10,000) cost of a minimum site assessment otherwise required in this section. The department shall develop a financial assistance means test, including a sliding scale of financial relief as the department deems appropriate, that allows some or all of the minimum site assessment costs to be paid from the corrective action fund.

         D. All department determinations concerning the manner of payment, compliance and cost eligibility shall be made in accordance with department rules.

         E. If the owner or operator is in compliance with the requirements of Subsection B of Section 74-6B-8 NMSA 1978, payment of costs from the corrective action fund shall occur not later than sixty days after the submission of the application and proper documentation of costs by the owner or operator, except as provided in Section 74-6B-14 NMSA 1978.

         F. Before any payment is made for a corrective action pursuant to this section to or on behalf of an owner or operator, payment shall first be made to reimburse the federal leaking underground storage tank trust fund for any costs incurred for that corrective action.

         G. Counties and municipalities are exempt from the requirements to pay any portion of the initial ten thousand dollars ($10,000) of a minimum site assessment."

    SECTION 125. A new section of the Ground Water Protection Act is enacted to read:

    "[NEW MATERIAL] BOARD DUTIES.--The board shall assist the department in carrying out the objectives of the Ground Water Protection Act, including advising the department on the adoption and implementation of regulations adopted pursuant to that act and other duties as determined by the department."

    SECTION 126. Section 74-7-1 NMSA 1978 (being Laws 1983, Chapter 29, Section 1) is amended to read:

    "74-7-1. SHORT TITLE.--[This act] Chapter 74, Article 7 NMSA 1978 may be cited as the "Environmental Compliance Act"."

    SECTION 127. Section 74-7-3 NMSA 1978 (being Laws 1983, Chapter 29, Section 3) is amended to read:

    "74-7-3. DEFINITIONS.--As used in the Environmental Compliance Act:

         [A. "board" means the environmental improvement board;

         B.] A. "director" means the director of the division;

         [C.] B. "division" means the [environmental improvement division of the health and environment] department of environment;

         [D.] C. "environmental audit" means a systematic assessment, analysis and evaluation by a regulated entity of its compliance with environmental laws and regulations administered by the [board and the] division, applicable to its operation; and

         [E.] D. "regulated entity" means any person, partnership, corporation, firm, association, governmental or other entity organized and engaging in any business or activity in the state [which] that deals with or has an impact on the environment of this state or [which] that must by law comply with federal or state environmental protection regulations."

    SECTION 128. Section 74-7-5 NMSA 1978 (being Laws 1983, Chapter 29, Section 5) is amended to read:

    "74-7-5. ADOPTION OF REGULATIONS--NOTICE AND HEARING--APPEAL.--

         A. No regulations shall be adopted pursuant to the Environmental Compliance Act until after a public hearing by the [board] division. As used in this section, "regulation" includes any amendment or repeal thereof. Hearings on regulations shall be held pertaining to that environmental area [which] that is substantially affected by the regulation. In making a regulation, the [board] division shall give the weight it deems appropriate to all relevant facts and circumstances presented at the hearing, including but not limited to:

             (1) the protection of the health and welfare of both the general public and the individual worker and the maintenance of the delicate ecological balance;

             (2) the necessity for and technical practicability and economic reasonableness of taking action with respect to environmental auditing programs;

             (3) the need to protect private proprietary processes;

             (4) the level of management support within the specific regulated entity for the environmental auditing program;

             (5) a regulated entity's established procedures to ensure compliance and correction of any environmental standards that are violated; and

             (6) compliance with the requirements of the following federal laws and their associated standards, regulations and state implementing directives:

                  (a) the National Environmental Policy Act of 1969;

                  (b) the Federal Water Pollution Control Act;

                  (c) the Safe Drinking Water Act of 1974;

                  (d) the Resource Conservation and Recovery Act of 1976;

                  (e) the Used Oil Recycling Act of 1980;

                  (f) the Clean Air Act;

                  (g) the Toxic Substances Control Act;

                  (h) the Occupational Safety and Health Act of 1970;

                  (i) the Noise Control Act of 1972;

                  (j) the Hazardous Materials Transportation Act; and

                  (k) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

         B. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, time and place of the hearing and the manner in which interested persons may present their views. The notice shall state where interested persons may secure copies of any proposed regulation. 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 to the [board] division for advance notice of hearings.

         C. At the hearing, the [board] division shall allow all interested persons reasonable opportunity to submit data, views or arguments, orally or in writing, pertaining to the feasibility of conducting environmental audits.

         D. No regulation or amendment or repeal thereof adopted by the [board] division shall become effective until thirty days after its filing pursuant to the State Rules Act.

         E. Any person who is affected by a regulation adopted by the [board] division may appeal to the court of appeals for further relief. All appeals shall be upon the transcript made at the hearing and shall be taken to the court of appeals within thirty days after filing of the regulation pursuant to the State Rules Act."

    SECTION 129. Section 74-7-6 NMSA 1978 (being Laws 1983, Chapter 29, Section 6) is amended to read:

    "74-7-6. DIVISION--DUTIES.--The division shall [establish guidelines for regulated entities concerning environmental auditing programs pursuant to the rules and regulations adopted in compliance with the Environmental Compliance Act]:

         A. develop and maintain regulations and standards regarding environmental auditing programs; and

         B. promulgate other regulations as necessary to carry out the provisions of the Environmental Compliance Act."

    SECTION 130. Section 74-7-8 NMSA 1978 (being Laws 1983, Chapter 29, Section 8) is amended to read:

    "74-7-8. [BOARD AND] DIVISION--INCENTIVES.--Regulated entities shall be allowed a reasonable time as determined by the division to correct any potential problem areas identified in the environmental auditing process. The [board and] division shall develop incentives to encourage regulated entities to participate in the Environmental Compliance Act."

    SECTION 131. Section 74-8-1 NMSA 1978 (being Laws 1989, Chapter 279, Section 1, as amended) is amended to read:

    "74-8-1. SOLID WASTE INCINERATION PROHIBITED.--No solid waste shall be disposed of by incineration in New Mexico until the [environmental improvement board] department of environment adopts regulations under the provisions of Section 74-2-5.2 NMSA 1978. As used in this section:

         A. "solid waste" means solid waste as defined in the Solid Waste Act; and

         B. "incineration" means the process of reducing combustible solid waste designed to achieve complete combustion by means of a device or chamber."

    SECTION 132. Section 74-8-2 NMSA 1978 (being Laws 1989, Chapter 279, Section 2) is amended to read:

    "74-8-2. DISPOSAL OF INCINERATOR ASH PROHIBITED.--No bottom, fly or combined ash from any incinerator located inside or outside New Mexico shall be disposed of at any solid waste landfill in New Mexico until such time as the [environmental improvement board] department of environment adopts regulations [proposed by the environmental improvement division of the health and environment department] addressing such disposal. These regulations shall prescribe that incinerator ash be managed as solid, special or hazardous waste."

    SECTION 133. Section 74-9-1 NMSA 1978 (being Laws 1990, Chapter 99, Section 1) is amended to read:

    "74-9-1. SHORT TITLE.--[Sections 1 through 42 and 72 and 73 of this act] Chapter 74, Article 9 NMSA 1978 may be cited as the "Solid Waste Act"."

    SECTION 134. Section 74-9-3 NMSA 1978 (being Laws 1990, Chapter 99, Section 3) is amended to read:

    "74-9-3. DEFINITIONS.--As used in the Solid Waste Act:

         A. "agricultural" means all methods of production and management of livestock, crops, vegetation and soil. This includes, but is not limited to, raising, harvesting and marketing. It also includes, but is not limited to, the activities of feeding, housing and maintaining animals such as cattle, dairy cows, sheep, goats, hogs, horses and poultry;

         B. "board" means the environmental improvement board;

         C. "commercial hauler" means any person transporting solid waste for hire by whatever means for the purpose of disposing of the solid waste in a solid waste facility, except that the term does not include an individual transporting solid waste generated on or from [his] the person's residential premises for the purpose of disposing of it in a solid waste facility;

         D. "construction and demolition debris" means materials generally considered to be not water soluble and nonhazardous in nature, including, but not limited to, steel, glass, brick, concrete, asphalt roofing materials, pipe, gypsum wallboard and lumber from the construction or destruction of a structure as part of a construction or demolition project, and includes rocks, soil, tree remains, trees and other vegetative matter that normally results from land clearing or land development operations for a construction project, but if construction and demolition debris is mixed with any other types of solid waste, whether or not originating from the construction project, it loses its classification as construction and demolition debris;

         E. "densified-refuse-derived fuel" means a product resulting from the processing of mixed municipal solid waste in a manner that produces a fuel suitable for combustion in existing or new solid-fuel-fired boilers;

         F. "director" means the director of the [environmental improvement] division [of the health and environment department];

         G. "division" means the environmental improvement division of the [health and environment] department of environment;

         H. "municipality" means any incorporated city, town or village, whether incorporated under general act, special act or special charter, incorporated counties and H class counties;

         I. "person" means an individual or any entity, including federal, state and local governmental entities, however organized;

         J. "plan" or "state plan" means the solid waste management plan required to be developed under Section [4 of the Solid Waste Act] 74-9-4 NMSA 1978;

         K. "program" or "state program" means the comprehensive solid waste management program described in Section [12 of the Solid Waste Act] 74-9-12 NMSA 1978;

         L. "recyclable materials" means materials that would otherwise become solid waste if not recycled and that can be collected, separated or processed and placed in use in the form of raw materials, products or densified-refuse-derived fuels;

         M. "recycling" means any process by which recyclable materials are collected, separated or processed and reused or returned to use in the form of raw materials or products;

         N. "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities. "Solid waste" does not include:

             (1) drilling fluids, produced waters and other nondomestic wastes associated with the exploration, development or production, transportation, storage, treatment or refinement of crude oil, natural gas, carbon dioxide gas or geothermal energy;

             (2) fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels and wastes produced in conjunction with the combustion of fossil fuels that are necessarily associated with the production of energy and that traditionally have been and actually are mixed with and are disposed of or treated at the same time with fly ash, bottom ash, boiler slag or flue gas emission control wastes from coal combustion;

             (3) waste from the extraction, beneficiation and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore, coal, copper, molybdenum and other ores and minerals;

             (4) agricultural waste, including, but not limited to, manures and crop residues returned to the soil as fertilizer or soil conditioner;

             (5) cement kiln dust waste;

             (6) sand and gravel;

             (7) solid or dissolved material in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1342 or source, special nuclear or byproduct material as defined by the federal Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq.;

             (8) densified-refuse-derived fuel; or

             (9) any material regulated by Subtitle C of the federal Resource Conservation and Recovery Act of 1976, substances regulated by the federal Toxic Substances Control Act or low-level radioactive waste;

         O. "solid waste district" means a geographical area designated by the [board] division as a solid waste district under Section [11 of the Solid Waste Act] 74-9-11 NMSA 1978;

         P. "solid waste facility" means any public or private system, facility, location, improvements on the land, structures or other appurtenances or methods used for processing, transformation, recycling or disposal of solid waste, including landfill disposal facilities, transfer stations, resource recovery facilities, incinerators and other similar facilities not specified, but does not include equipment specifically approved by order of the director to render medical waste noninfectious or a facility [which] that is permitted pursuant to the provisions of the Hazardous Waste Act and does not apply to a facility fueled by a densified-refuse-derived fuel that accepts no other solid waste;

         Q. "source reduction" means any action that causes a net reduction in the generation, volume or toxicity of solid waste;

         R. "special waste" means solid waste that has unique handling, transportation or disposal requirements to assure protection of the environment and the public health and safety;

         S. "transformation" means incineration, pyrolysis, distillation, gasification or biological conversion other than composting; and

         T. "yard refuse" means vegetative matter resulting from landscaping, land maintenance and land clearing operations."

    SECTION 135. Section 74-9-5 NMSA 1978 (being Laws 1990, Chapter 99, Section 5) is amended to read:

    "74-9-5. PLAN--EFFECT.--The plan approved by the [board] division shall be effective thirty days after its approval and shall be filed under the provisions of Section 14-4-4 NMSA 1978. Consistency with the plan shall be required:

         A. of any regulation adopted by the [board] division under the provisions of the Solid Waste Act;

         B. in any action taken by the director under authority contained in the Solid Waste Act; and

         C. as a condition of approval of any application by a county or municipality for a grant under the provisions of the Solid Waste Act."

    SECTION 136. Section 74-9-7 NMSA 1978 (being Laws 1990, Chapter 99, Section 7, as amended by Laws 1991, Chapter 185, Section 1 and also by Laws 1991, Chapter 194, Section 2) is amended to read:

    "74-9-7. PLAN--INFORMATION REQUIRED FROM COUNTIES AND MUNICIPALITIES.--

         A. As a basis for developing and preparing the plan, the director shall request and shall use information from each county and municipality or combinations of counties and municipalities as further authorized under the provisions of this section.

         B. The director shall prepare and distribute to each county and municipality guidelines to assist [it] them in the preparation of the plan information submittals. These guidelines shall be distributed no later than October 1, 1990. The guidelines shall include requirements for submittal of:

             (1) documentation that demonstrates that the submitting county or municipality considered combining with one or more other counties or municipalities, or both, to form a district for solid waste planning and local implementation of program elements for which the county's or municipality's participation is required under the provisions of the Solid Waste Act; and

             (2) information to be furnished by counties or municipalities for their respective jurisdictions that corresponds generally to the provisions of Section 74-9-6 NMSA 1978.

         C. If a county or municipality indicates in its submission that it has developed through a joint powers agreement or otherwise a plan for formation of a solid waste district with one or more other participating counties or municipalities, that proposed district shall be recommended to the [board by the director] division for designation under Section 74-9-11 NMSA 1978.

         D. In developing the information to be submitted to the director, each county and municipality shall provide:

             (1) for the maximum public participation in the process that is possible within time constraints and available resources; and

             (2) for obtaining information from representatives of the private sector involved in solid waste management.

         E. The information submitted to the director shall include a description of methods used by the county or municipality to achieve the participation required under Subsection D of this section.

         F. If a county or municipality or any combination of counties or municipalities designates in a plan information submittal a proposed county, municipal or regional landfill disposal [sites] site and the [sites comply] site complies with applicable substantive permitting requirements established by the Solid Waste Act and regulations adopted pursuant to that act, the [designations] designation shall be binding upon the director unless [he] the director applies for and receives from the [board] secretary authorization to change [a] the designation.