Ground Water Protection

NMSA 1978 ch. 74, art. 6B

in effect

NMSA 1978, § 74-6B-1 Short title

74-6B-1. Short title Chapter 74, Article 6B NMSA 1978 may be cited as the "Ground Water Protection Act". Laws 1990, ch. 124, § 1; 1992, ch. 64, § 1.

NMSA 1978, § 74-6B-2 Findings; purpose of act

74-6B-2. Findings; purpose of act A. The legislature recognizes the threat to the public health and safety and the environment resulting from pollution of ground water resources as a result of leaking storage tanks. The legislature also recognizes that some owners and operators of facilities containing storage tanks cannot take corrective action without placing their businesses in serious financial jeopardy. B. The legislature finds that, because New Mexico is large in area and sparsely populated in some regions, it is in the public interest to take corrective action at contaminated sites so that fuel will continue to be readily available. C. The purpose of the Ground Water Protection Act is to provide substantive provisions and funding mechanisms to the extent that funds are available to enable the state to take corrective action at sites contaminated by leakage from storage tanks. Laws 1990, ch. 124, § 2; 1995, ch. 6, § 15; 2001, ch. 325, § 12.

NMSA 1978, § 74-6B-3 Definitions

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 is 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 is regulated under Chapter 601 of Title 49 of the United States Code or that is an intrastate pipeline facility regulated under state laws as provided in Chapter 601 of Title 49 of the United States Code and that is determined by the United States secretary of transportation to be connected to a pipeline, or to be operated or intended to be capable of operating at pipeline pressure or as an integral part of a pipeline; (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 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 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 a combination of tanks, including underground pipes connected thereto, that 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, that is regulated under Chapter 601 of Title 49 of the United States Code or that is an intrastate pipeline facility regulated under state laws as provided in Chapter 601 of Title 49 of the United States Code and that is determined by the United States secretary of transportation to be connected to a pipeline, or to be operated or intended to be capable of operating at pipeline pressure or as an integral part of a pipeline; (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 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. Laws 1990, ch. 124, § 3; 1992, ch. 64, § 2; 1993, ch. 298, § 3; 2001, ch. 325, § 13; 2010, ch. 27, § 3; 2018, ch. 11, § 3.

NMSA 1978, § 74-6B-4 Storage tank committee; creation; terms; powers and duties

74-6B-4. Storage tank committee; creation; terms; powers and duties A. An advisory committee to be known as the "storage tank committee" is created. It shall consist of seven members: (1) the secretary or his designee; and (2) six members to be appointed by and to serve at the pleasure of the governor and to be chosen from the following groups, with no more than one member from each group: (a) fire protection districts; (b) elected local government officials; (c) wholesalers of motor fuels; (d) independent retailers of motor fuels; (e) individuals knowledgeable about corrective actions in connection with leaking storage tanks; and (f) private citizens or interest groups. B. Except for the initial terms of the members, the term of the appointed members shall be three years. For the purpose of staggering subsequent appointments, the initial terms of the six appointed members shall be: two for one year; two for two years; and two for three years. Members shall serve until their successors are appointed. Vacancies occurring in the membership of an appointed member shall be filled by the governor for the remainder of the unexpired term. C. The committee may: (1) recommend proposed rules to the board or the secretary; (2) establish procedures, practices and policies governing the committee's activities; (3) review corrective actions of the department and submit comments to the secretary; and (4) review payments from the corrective action fund and submit its comments on the payments to the secretary, except payments made pursuant to Section 74-6B-13 NMSA 1978. D. Members of the committee shall receive reimbursement for expenses incurred in the performance of their duties pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no other compensation, perquisite or allowance. Expenditures for this purpose shall be made from the storage tank fund. Laws 1990, ch. 124, § 4; 1992, ch. 64, § 3; 2001, ch. 325, § 14.

NMSA 1978, § 74-6B-5 Department's right of entry and inspection

74-6B-5. Department's right of entry and inspection The department has all rights of entry and inspection necessary to administer and enforce the Ground Water Protection Act as it has under Section 74-4-4.3 NMSA 1978. Laws 1990, ch. 124, § 5; 1992, ch. 64, § 4.

NMSA 1978, § 74-6B-6 Civil liability for damage to property from leaking storage tank

74-6B-6. Civil liability for damage to property from leaking storage tank Nothing in the Ground Water Protection Act prohibits any existing or future claim for relief a person may have as a result of damages sustained because of a release from a storage tank. Laws 1990, ch. 124, § 6; 2001, ch. 325, § 15.

NMSA 1978, § 74-6B-7 Corrective action fund created; authorization for expenditures

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 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, 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 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. 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; (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; 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, 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. Laws 1990, ch. 124, § 7; 1992, ch. 64, § 5; 1993, ch. 298, § 4; 1995, ch. 6, § 16; 2001, ch. 325, § 16; 2004, ch. 88, § 1.

NMSA 1978, § 74-6B-8 Liability; cost recovery

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 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 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 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; 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 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. Laws 1990, ch. 124, § 8; 1991, ch. 47, § 1; 1992, ch. 64, § 6; 2001, ch. 325, § 17.

NMSA 1978, § 74-6B-9 Storage tank fee; deposit in storage tank fund

74-6B-9. Storage tank fee; deposit in storage tank fund On July 1 of each year, there is due from and shall be paid by either the owner or the operator a fee of one hundred dollars ($100) for each storage tank owned or operated. The fees shall be paid to the department and deposited in the storage tank fund created in Section 74-4-4.8 NMSA 1978. Laws 1990, ch. 124, § 9; 1992, ch. 64, § 7; 2001, ch. 325, § 18.

NMSA 1978, § 74-6B-10 Act does not create insurance company or fund

74-6B-10. Act does not create insurance company or fund Nothing in the Ground Water Protection Act creates an insurance company or an insurance fund. The corrective action fund is not subject to the provisions of the Insurance Code. Laws 1990, ch. 124, § 10.

NMSA 1978, § 74-6B-13 Payment program

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 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 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. 1978 Comp., § 74-6B-13, enacted by Laws 1992, ch. 64, § 10; 1993, ch. 327, § 1; 1995, ch. 6, § 17; 1997, ch. 104, § 3; 1997, ch. 222, § 3; 2001, ch. 325, § 19.

NMSA 1978, § 74-6B-14 State liability; insufficient balance in the fund

74-6B-14. State liability; insufficient balance in the fund Nothing in the Ground Water Protection Act establishes or creates any liability or responsibility on the part of the department or the state to pay corrective action costs from any source other than the corrective action fund, in the manner described, nor shall the department or the state have any liability or responsibility to make any payments for corrective action costs if the balance in the fund is insufficient to cover those costs. 1978 Comp., § 74-6B-14, enacted by Laws 1992, ch. 64, § 11.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18577/index.doFetched: 10/20/2026