NMSA 1978, § 74-9-1 Short title
74-9-1. Short title
Sections 1 through 42 and 72 and 73 of this act may be cited as the "Solid Waste Act".
Laws 1990, ch. 99, § 1.
Solid Waste Act
NMSA 1978 ch. 74, art. 9
in effectNMSA 1978, § 74-9-2 Purposes
74-9-2. Purposes
The purposes of the Solid Waste Act are to:
A. authorize and direct the establishment of a comprehensive solid waste management program;
B. provide technical, financial and program development assistance to counties and municipalities for solid waste management;
C. enhance the beauty and quality of the environment; conserve, recover and recycle resources; and protect the public health, safety and welfare;
D. plan for and regulate, in the most economically feasible, cost-effective and environmentally safe manner, the reduction, storage, collection, transportation, separation, processing, recycling and disposal of solid waste;
E. provide the opportunity and incentive for counties and municipalities to plan adequately and provide for cost-effective and environmentally safe solid waste management at the local level;
F. require issuance of permits for the construction, operation and, if applicable, closure and postclosure maintenance of solid waste facilities;
G. promote source reduction, recycling, reuse, treatment and transformation of solid waste as viable alternatives to disposal of those wastes by landfill disposal methods; and
H. require the state and its agencies, instrumentalities and political subdivisions to develop procurement policies that aid and promote the development of recycling recyclable materials.
Laws 1990, ch. 99, § 2.
NMSA 1978, § 74-9-3 Definitions
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 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 [department of environment];
G. "division" means the environmental improvement division of the health and environment department [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 [74-9-4 NMSA 1978] of the Solid Waste Act;
K. "program" or "state program" means the comprehensive solid waste management program described in Section 12 [74-9-12 NMSA 1978] of the Solid Waste Act;
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 non-domestic 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 by-product material as defined by the 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 as a solid waste district under Section 11 [74-9-11 NMSA 1978] of the Solid Waste Act;
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 is permitted pursuant to the provisions of the Hazardous Waste Act [Chapter 74, Article 4 NMSA 1978] 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.
Laws 1990, ch. 99, § 3.
NMSA 1978, § 74-9-4 Plan; requirement
74-9-4. Plan; requirement
As a basis for developing a comprehensive solid waste management program, the director shall prepare and submit to the board for approval a solid waste management plan no later than December 31, 1992. The plan shall be comprehensive and integrated and shall include consideration of the following activities with the priorities indicated:
A. first, source reduction and recycling;
B. second, environmentally safe transformation; and
C. third, environmentally safe landfill disposal.
Laws 1990, ch. 99, § 4; 1991, ch. 194, § 1.
NMSA 1978, § 74-9-5 Plan; effect
74-9-5. Plan; effect
The plan approved by the board 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 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.
Laws 1990, ch. 99, § 5.
NMSA 1978, § 74-9-6 Plan; required provisions
74-9-6. Plan; required provisions
The plan shall include at least the following elements:
A. a waste characterization element that identifies the constituent materials, including but not limited to type, quantity and source, that compose solid waste generated or disposed of, or both, within the state;
B. a source reduction element that identifies types, quantities and toxicities of solid waste to be reduced, mechanisms to stimulate and enhance reduction, including the impacts on generation of solid waste of packaging, rate structures for collection and disposal economic incentives, and a program implementation schedule to meet the goal stated in Subsection J of this section;
C. a recycling element that identifies types and quantities of recyclable materials, evaluates and quantifies current levels of recycling efforts in New Mexico, and describes, evaluates and identifies the current and future market structure for recycling, including procurement preferences for recycled materials, and a program implementation schedule to meet the goal stated in Subsection J of this section;
D. a composting element that identifies both the types and quantities of solid waste that are and those that could be composted, procurement preferences for composted products, a description of the methods and facilities needed to implement the composting element and a program implementation schedule to meet the goal stated in Subsection J of this section;
E. a solid waste facility capacity element that identifies, for each solid waste district, current landfill disposal capacity and projects the quantity of landfill disposal space that will have to be permitted to maintain an average landfill disposal capacity that will be needed to manage the quantity of solid waste projected to be generated over the next ten years from sources both within and outside of the state, reduced by source reduction, recycling, composting and other programs;
F. an education and public information element that identifies existing public information and education programs and describes how the state will increase awareness of and cooperation of the public in environmentally safe solid waste management;
G. a funding element that includes a projected cost of implementation of the plan and recommendations for developing revenue sources for plan implementation to meet the goal stated in Subsection J of this section;
H. a special waste and household hazardous waste element that identifies types and quantities of those categories of and recommends methods for waste handling, collecting, transporting and disposing of those wastes; identifies existing and future strategies for managing those wastes; and includes an implementation schedule to meet the goal stated in Subsection J of this section;
I. a siting element that locates and provides a description of areas that could be used for development of adequate transformation or landfill disposal capacity concurrent and consistent with the development and implementation of the plan; and
J. a goal to divert twenty-five percent of all solid waste from solid waste disposal facilities by July 1, 1995, and fifty percent of all solid waste by July 1, 2000, with a base rate of disposal calculated by multiplying the population of the state by four pounds per person per day for the period used as the base period.
Laws 1990, ch. 99, § 6.
NMSA 1978, § 74-9-7 Plan; information required from counties and municipalities
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 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 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 proposed county, municipal or regional landfill disposal sites, and the sites comply with applicable substantive permitting requirements established by the Solid Waste Act and regulations adopted pursuant to that act, the designations shall be binding upon the director unless he applies for and receives from the board authorization to change a designation.
G. Counties and municipalities shall furnish the documentation and information described in Subsection B of this section no later than July 1, 1992.
H. Failure by a county or municipality to furnish information that is required by the director, giving due regard to the particular demographic, geographic, economic and other appropriate characteristics of the county or municipality, may render it ineligible to be a recipient of any grants authorized under the provisions of the Solid Waste Act and established by regulations adopted by the board.
Laws 1990, ch. 99, § 7; 1991, ch. 185, § 1; 1991, ch. 194, § 2.
NMSA 1978, § 74-9-8 Board adoption of initial regulations
74-9-8. Board adoption of initial regulations
No later than December 31, 1991, the board shall adopt regulations under the authority of this section to:
A. implement, administer and enforce a program for the cost-effective and environmentally safe siting, construction, operation, maintenance, closure and post-closure care of solid waste facilities, including financial responsibility requirements for solid waste facility owners and operators and also including requirements that assure that the relative interests of the applicant, other owners of property likely to be affected and the general public will be considered prior to the issuance of a permit for a solid waste facility;
B. define the solid wastes that are considered special wastes;
C. establish specific requirements for the detoxification and disposal of special wastes;
D. establish classifications of solid waste facilities and define what types of solid waste may be processed or disposed of in each classification;
E. establish performance standards for the construction and operation of solid waste facilities that will assure protection of ground water quality from degradation by contaminants from solid waste facilities consistent with the provisions of the Water Quality Act [Chapter 74, Article 6 NMSA 1978] and the regulations and standards established under that act by the water quality control commission, provided such regulations shall not allow permitting of any active solid waste facility larger than five hundred acres;
F. establish performance standards for transformation facilities that will assure protection of the state's environment;
G. establish requirements and procedures for the granting or denial of an application to modify a solid waste facility permit under Section 74-9-25 NMSA 1978;
H. establish requirements and procedures for commercial haulers to minimize littering and otherwise prevent degradation of the environment;
I. establish an applicant fee schedule for processing permit applications that is based on costs of application review incurred by the division and also costs incurred for investigations of applicants by state departments and agencies other than the division, which regulation shall provide for the reimbursement of these costs to the division or other department or agency from the fees charged and shall also limit the fee to be not greater than ten thousand dollars ($10,000);
J. establish requirements and procedures for a person to obtain a variance from the application of a substantive regulation to the person if the person files a written application for a variance with the director and demonstrates to the director's satisfaction that:
(1) application of the regulation would result in an arbitrary and unreasonable taking of the applicant's property or would impose an undue economic burden upon any lawful business, occupation or activity; and
(2) granting the variance will not result in any condition injurious to human health, safety or welfare or the environment;
K. assure that no variance will be granted under the provisions of Subsection J of this section until the director has considered the relative interests of the applicant, other owners of property likely to be affected and the general public and that any variance or renewal of a variance shall be granted for time periods and under conditions consistent with reasons for the various [variance] but within the following limitations:
(1) if the variance is granted on the grounds that there are no practicable means known or available for the adequate prevention of degradation of the environment or the risk to the public health, safety or welfare, it shall continue only until the necessary means for the prevention of the degradation or risk become known and available; or
(2) if the variance is granted on the grounds that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraph (1) of this subsection, it shall not be granted for more than one year;
L. establish a list of solid wastes that shall not be transferred, disposed of or transformed in a solid waste facility and prohibit the disposal or transformation of those solid wastes in solid waste facilities;
M. establish recordkeeping procedures for solid waste transfer, landfill disposal and transformation facilities that shall include requirements for recording the type, amount and origin of solid waste transferred, disposed of or transformed at the facility and that require operators of landfill disposal, solid waste transfer and transformation facilities within the state to:
(1) maintain records in a form required by the division and file them with the division indicating the type, amount, origin and location in a landfill disposal facility of solid waste accepted by the facility;
(2) maintain copies of the records required under Paragraph (1) of this subsection after closure in a manner and for the length of time prescribed by the division; and
(3) make all required records available for inspection by the division and the general public during normal business hours; and
N. require the division to establish a solid waste facility operator certification program.
Laws 1990, ch. 99, § 8; 1991, ch. 185, § 2; 1991, ch. 194, § 3.
NMSA 1978, § 74-9-9 Board review and modification of initial regulations after approval of plan
74-9-9. Board review and modification of initial regulations after approval of plan
After approval of the plan, the board shall review the initial solid waste regulations adopted under Section 8 [74-9-8 NMSA 1978] of the Solid Waste Act and make any modifications necessary to make the regulations consistent with the plan.
Laws 1990, ch. 99, § 9.
NMSA 1978, § 74-9-10 Board adoption of regulations for source reduction and recycling programs
74-9-10. Board adoption of regulations for source reduction and recycling programs
After its approval of the plan, the board shall adopt regulations to establish source reduction and recycling programs consistent with the source reduction and recycling element of the plan and designed to meet the schedule for goal achievement provided in Subsection J of Section 6 [74-9-6 NMSA 1978] of the Solid Waste Act.
Laws 1990, ch. 99, § 10.
NMSA 1978, § 74-9-11 Establishment of solid waste districts; requirements; changing boundaries
74-9-11. Establishment of solid waste districts; requirements; changing boundaries
A. After its approval of the plan, the board shall adopt regulations to establish solid waste districts. The districts shall include and be identical with any districts recommended under the provisions of Section 7 [74-9-7 NMSA 1978] of the Solid Waste Act. In establishing districts the board shall take into account all relevant factors, including:
(1) the impact of solid waste disposal on land, water and other resources;
(2) the financial impact on counties and municipalities of constructing and upgrading landfill disposal facilities;
(3) the risks to the environment and to the public health, safety and welfare associated with solid waste;
(4) the costs and risks of the transportation of solid waste;
(5) existing county and municipal boundaries in the state and commercial, industrial, transportation and population centers both within the state and those that include areas within and outside of the state; and
(6) consideration of existing landfill disposal agreements, service areas, facilities and collection systems.
B. The board shall district the whole state, and solid waste district boundaries shall be contiguous within the state. Boundaries may cross state lines. The boundaries of a district shall not be altered without board approval. Any person may petition the board for realignment of district boundaries. The board shall act on any petition for realignment of district boundaries within six months of the submission of the petition.
C. The boundaries of a solid waste district need not be county or municipal boundaries. Counties and municipalities may be divided by district boundaries with each part in a different district as long as the districts are contiguous.
Laws 1990, ch. 99, § 11.
NMSA 1978, § 74-9-12 Comprehensive state solid waste management program
74-9-12. Comprehensive state solid waste management program
A. A comprehensive state solid waste management program consistent with the plan shall be designed by the director by December 1, 1993 and shall be fully implemented by July 1, 1994. The program shall be reexamined at least once every three years by the director for management and operational compliance and efficiency and to validate compliance with the applicable requirements of the federal statutes and regulations.
B. The program shall be designed to achieve the following objectives:
(1) reduction, recycling, collection, transportation, storage, separation, transformation and disposal of solid waste throughout the state;
(2) coordinated regional activity for solid waste management within a solid waste district;
(3) positive proposals for local action to correct deficiencies in present solid waste management processes;
(4) financial, planning and technical assistance to counties and municipalities, state agencies and other persons to achieve cost-effective reduction, recycling, transformation and disposal of solid waste and environmentally safe solid waste management practices; and
(5) the education of the general public and the education and training of individuals involved in solid waste management to assure proper solid waste management.
C. The program shall identify detailed actions that could be taken by designated persons or organizations to achieve the objectives stated in Subsection B of this section.
Laws 1990, ch. 99, § 12; 1991, ch. 185, § 3; 1991, ch. 194, § 4.
NMSA 1978, § 74-9-13 Comprehensive state solid waste management report
74-9-13. Comprehensive state solid waste management report
The director shall prepare by July 1, 1994, and annually thereafter, a report for the legislature on the status of solid waste management efforts in the state. The report shall include, at a minimum:
A. the status of, implementation of and compliance with the Solid Waste Act;
B. a comprehensive analysis, to be updated in each report, of solid waste generation and disposal in the state projected for a twenty-year period beginning on the effective date of the Solid Waste Act;
C. the total amounts of solid waste generated, recycled and disposed of and the methods of solid waste reduction, recycling and disposal used during the calendar year prior to the year in which the report is published;
D. an evaluation of the development and implementation of local solid waste management programs;
E. an evaluation of the success in meeting the solid waste reduction goals established in Section 74-9-6 NMSA 1978;
F. recommendations concerning existing and potential programs for source reduction and recycling that would be appropriate for the state, its agencies and political subdivisions to implement to meet the requirements of the Solid Waste Act;
G. an evaluation of the markets for recycled materials and the success of state, local and private industry efforts to enhance the markets for those materials, including the results of any procurement requirements of the Solid Waste Act;
H. the results of any recycling demonstration programs; and
I. recommendations to the governor and the legislature to improve the comprehensive management of solid waste in this state.
Laws 1990, ch. 99, § 13; 1991, ch. 194, § 5.
NMSA 1978, § 74-9-14 Division; powers and duties
74-9-14. Division; powers and duties
The division is responsible for the enforcement and implementation of the regulations adopted by the board pursuant to the Solid Waste Act. In addition to its other powers and duties under the Solid Waste Act and other laws, the division, through its director and in accordance with his delegation of authority, shall:
A. develop and implement, in consultation with local governments, the private sector and members of the public, the comprehensive solid waste management program defined in Section 74-9-12 NMSA 1978, and update the program at least every three years;
B. provide technical assistance on solid waste management matters to counties, municipalities and other persons and cooperate with appropriate federal agencies and private organizations in carrying out the provisions of the Solid Waste Act;
C. promote the planning and application of source reduction, recycling and solid waste facility siting systems that preserve and enhance the quality of the air, water and other natural resources of the state;
D. assist in and encourage, where appropriate, the development of regional solid waste management;
E. provide the economic development department with technical assistance to enable it to encourage and support the development within the state of commercial enterprises that:
(1) produce a minimum of solid waste;
(2) engage in source reduction and recycling activities; or
(3) promote market activity and develop products made of recycled materials;
F. using the state institutions of higher education, solid waste management personnel from local governments, the private sector and other organizations, conduct research, and solicit public input in the research process, on alternative, economically feasible, cost-effective and environmentally safe solid waste management methods;
G. develop information, in consultation with the economic development department, state highway and transportation department and any other appropriate state agencies, on markets and strategies for market development and expansion for recyclable materials; maintain a directory of recycling businesses operating in the state; and serve as a coordinator to match recycled materials with markets;
H. in cooperation and coordination with the general services department, develop and manage a program of grants for source reduction and recycling programs;
I. cooperate with the state highway and transportation department and private organizations engaged in beautification programs in the development of a litter control program;
J. advise the board about ground water protection devices, air quality monitoring devices and other devices or measures that may be required as a result of solid waste management operations;
K. increase public education and public awareness of solid waste issues by developing and promoting statewide programs of litter control, recycling, source reduction and proper methods of solid waste management;
L. encourage public participation in rule-making processes regarding solid waste management;
M. determine monitoring requirements for solid waste facilities;
N. contract with private sector entities or the state institutions of higher education for implementation of appropriate parts of the solid waste management program described in Section 74-9-12 NMSA 1978;
O. enter into contracts appropriate and necessary to fulfill its responsibilities under the Solid Waste Act;
P. receive funds and accept, receive and administer grants or other funds or gifts from public or private sources, including the state and federal governments, for the purpose of carrying out the provisions of the Solid Waste Act; and
Q. participate in interstate and national initiatives to adopt uniform state laws when practicable and to enter into compacts between the state and other states for the improved management, recycling and source reduction of solid waste.
Laws 1990, ch. 99, § 14; 1991, ch. 21, § 43.
NMSA 1978, § 74-9-15 Specific program; state government source reduction and recycling
74-9-15. Specific program; state government source reduction and recycling
A. The division shall cooperate with the general services department in its assessment of the status of recycling efforts undertaken directly by state government for its own solid waste and its evaluation of existing programs and its development of necessary recycling programs to reduce the generation of solid waste by state government. The programs shall include recycling of office papers, cardboard, used motor oil, yard waste and other materials produced by the state for which recycling markets exist or may be developed.
B. Each state agency and the legislature shall prepare a source reduction and recycling plan addressing the requirements of Subsections C and D of this section. Each agency plan shall be submitted for approval to the general services department on or before December 31, 1991, consistent with the goals and guidelines of this section, the goals stated in Subsection J of Section 6 [74-9-6 NMSA 1978] of the Solid Waste Act and the state plan. Agency plans shall be updated biennially to increase the amount of solid waste recycled by taking advantage of any changed circumstances. Updated plans shall be submitted to the general services department for approval prior to adoption.
C. By July 1, 1992, each state agency and the legislature shall establish and implement a source separation and collection program for recyclable materials produced as a result of agency operations, including, at a minimum, high grade paper, corrugated paper and glass. The source separation and collection program shall include, at a minimum, procedures for collecting and storing recyclable materials and contractual and other arrangements with buyers. Each agency shall appoint a recycling coordinator and shall conduct educational programs about the recycling program for its employees.
D. By July 1, 1992, each state agency shall establish and implement a source reduction program for materials used in the course of agency operations. The program shall be designed and implemented to achieve the maximum feasible reduction of solid waste generated as a result of agency operations.
Laws 1990, ch. 99, § 15.
NMSA 1978, § 74-9-16 Specific program; post-secondary educational institutions source reduction and recycling
74-9-16. Specific program; post-secondary educational institutions source reduction and recycling
A. Each post-secondary educational institution shall prepare a source reduction and recycling plan addressing the requirements of Subsections B and C of this section. Each institution's plan shall be submitted for approval to the secretary of general services on or before December 31, 1991, consistent with the goals and guidelines of this section, the goals stated in Subsection J of Section 6 [74-9-6 NMSA 1978] of the Solid Waste Act and the state plan. Institution plans shall be updated biennially to increase the amount of solid waste recycled by taking advantage of any changed circumstances. Updated plans shall be submitted to the secretary of general services for approval prior to adoption.
B. By July 1, 1992, each institution shall establish and implement a source separation and collection program for recyclable materials, including at a minimum, high grade paper, corrugated paper and glass. The source separation and collection program shall include procedures for collecting and storing recyclable materials and contractual and other arrangements with buyers. Each institution shall appoint for each campus a recycling coordinator and shall conduct educational programs for students and employees about the recycling program.
C. By July 1, 1992, each post-secondary educational institution shall establish and implement a source reduction program for solid waste used in the course of its operations. The program shall be designed and implemented to achieve the maximum feasible reduction of solid waste generated as a result of the institution's operations.
D. By July 1, 1992, each post-secondary educational institution shall include in its source reduction and recycling program a composting component.
Laws 1990, ch. 99, § 16.
NMSA 1978, § 74-9-17 Specific program; education to promote source reduction and recycling
74-9-17. Specific program; education to promote source reduction and recycling
A. The division, in cooperation with the state department of public education, shall develop an educational program for the public in support of the state source reduction and recycling goals to promote source reduction and recycling efforts at the individual, local, regional and state levels.
B. The division shall develop and disseminate educational material designed to establish broad public understanding of, and compliance with, the state's source reduction and recycling goals.
Laws 1990, ch. 99, § 17.
NMSA 1978, § 74-9-18 Specific program; household hazardous waste management
74-9-18. Specific program; household hazardous waste management
A. No later than July 1, 1990, the director shall designate a household hazardous waste coordinator within the division to advise and assist counties, municipalities and other governmental entities that have implemented programs for household hazardous waste management.
B. The division shall provide technical assistance to counties, municipalities and other governmental entities that establish household hazardous waste management programs.
C. The division shall develop and implement a public information program to provide uniform and consistent information on the proper disposal of household hazardous waste. The program may include information, consistent with product labeling, on the proper use and storage of household products that contain hazardous substances.
D. The public information program shall be designed to provide uniform responses to public inquiries about household hazardous substances and household hazardous waste.
E. The public information program shall include the development of informative materials that may be used by counties, municipalities and other governmental entities in conjunction with household hazardous waste collection. The informative materials shall be prepared with the intent of promoting consistency in how household hazardous wastes are defined, collected and disposed of in household hazardous waste management programs.
Laws 1990, ch. 99, § 18.
NMSA 1978, § 74-9-19 Specific program; procurement of recycled supplies and materials
74-9-19. Specific program; procurement of recycled supplies and materials
A. The state purchasing agent and each central purchasing office, as defined in the Procurement Code [13-1-28 to 13-1-199 NMSA 1978], shall establish specifications, policies and practices that assure whenever supplies and materials that are composed in whole or in part of recycled materials are available for purchase and are shown by the seller, supplier or manufacturer to be equal in quality and are offered at a price not more than five percent higher than that of the supplies and materials not composed in whole or in part of recycled materials, the state purchasing agent and each central purchasing office shall purchase those supplies and materials composed in whole or in part of recycled materials.
B. In writing the specifications required under this section, the state purchasing agent and each central purchasing office shall incorporate requirements for the purchase of products made from recycled materials if their use is technically and economically feasible. The specifications shall include requirements for the purchase of the following materials:
(1) paper and paper products;
(2) plastic and plastic products;
(3) glass and glass products;
(4) motor oil and lubricants;
(5) construction materials, including insulating materials and paving materials;
(6) furnishings, including rugs, carpets and furniture;
(7) highway equipment, including signs, signposts, reflectors, guardrails, lane dividers and barricades; and
(8) compost.
Laws 1990, ch. 99, § 19.
NMSA 1978, § 74-9-20 Solid waste facility permit; application; information required
74-9-20. Solid waste facility permit; application; information required
A. Except as provided in Section 73 of the Solid Waste Act, no person shall construct, operate or close a solid waste facility without first obtaining a permit from the director for the described activity.
B. An application for a permit shall be in a form and contain the information required by the director, including all information necessary for the director to make a decision on the application pursuant to Section 24 [74-9-24 NMSA 1978] of the Solid Waste Act.
C. If at any time during the existence of a permit a change in the ownership or management of a nongovernmental permittee or of a person operating a permitted facility owned by a governmental entity occurs, the permittee or operator shall submit a complete description of the change to the director within thirty days of the date the change occurs. The permittee or operator shall also comply with all requirements of this section and Section 21 [74-9-21 NMSA 1978] of the Solid Waste Act.
Laws 1990, ch. 99, § 20.
NMSA 1978, § 74-9-21 Permit applicant disclosure
74-9-21. Permit applicant disclosure
A. Every applicant for a permit shall file a disclosure statement with the information required by and on a form developed by the division in cooperation with the department of public safety at the same time he files his application for a permit with the director.
B. Upon request of the director, the department of public safety shall, within ninety days after receipt of the disclosure statement from an applicant for a permit, prepare and transmit to the director an investigative report on the applicant, based in part upon the disclosure statement, except that this deadline may be extended for a reasonable period of time, for good cause, by the director. In preparing this report, the department of public safety may request and receive criminal history information from the federal bureau of investigation and any other law enforcement agency or organization. The director may also request information under this subsection regarding any person who will be or could reasonably be expected to be involved in management activities of the solid waste facility or any person who has a controlling interest in any permittee. The department of public safety shall provide such confidentiality regarding the information received from a law enforcement agency as may be imposed by that agency as a condition for providing that information to the department.
C. All persons required to file a disclosure statement shall provide any assistance or information requested by the director or the department of public safety and shall cooperate in any inquiry or investigation conducted by the department and any inquiry, investigation or hearing conducted by the director. If, upon issuance of a formal request to answer any inquiry or produce information, evidence or testimony, any person required to file a disclosure statement refuses to comply, the application of an applicant or the permit of a permittee may be denied or revoked by the director.
D. If any of the information required to be included in the disclosure statement changes, or if any additional information should be added after the filing of the statement, the person required to file it shall provide that information to the director in writing, within thirty days after the change or addition. The failure to provide such information within thirty days may constitute the basis for the revocation of or denial of an application for any permit issued or applied for in accordance with Section 24 [74-9-24 NMSA 1978] of the Solid Waste Act, but only if, prior to any such denial or revocation, the director notifies the applicant or permittee of the director's intention to do so and gives the applicant or permittee fourteen days from the date of the notice to explain why the information was not provided within the required thirty-day period. The director shall consider this information when determining whether to revoke or deny the permit.
E. No person shall be required to submit the disclosure statement required by this section if the person is a corporation or an officer, director or shareholder of that corporation and that corporation:
(1) has on file and in effect with the federal securities and exchange commission a registration statement required under Section 5, Chapter 38, Title 1 of the Securities Act of 1933, as amended, 15 U.S.C. Section 77e (c);
(2) submits to the director with the application for a permit evidence of the registration described in Paragraph (1) of this subsection and a copy of the corporation's most recent annual form 10-K or an equivalent report; and
(3) submits to the director on the anniversary of the date of the issuance of any permit it holds under the Solid Waste Act evidence of registration described in Paragraph (1) of this subsection and a copy of the corporation's most recent annual form 10-K or an equivalent report.
Laws 1990, ch. 99, § 21.
NMSA 1978, § 74-9-22 Solid waste facility permit; notice of application
74-9-22. Solid waste facility permit; notice of application
Each application filed with the division for a permit under the provisions of Section 74-9-20 NMSA 1978 shall include documentary proof that the applicant has provided notice of the filing of the application to the public and other affected individuals and entities. The board shall adopt a regulation specifying the required content of the notice. The notice shall be:
A. provided by certified mail to the owners of record, as shown by the most recent property tax schedule, of all properties:
(1) within one hundred feet of the property on which the facility is located or proposed to be located if the facility is or will be in a class A or H class county or a municipality with a population of more than two thousand five hundred persons; or
(2) within one-half mile of the property on which the facility is located or proposed to be located if the facility is or will be in a county or municipality other than those specified in Paragraph (1) of this subsection;
B. provided by certified mail to all municipalities and counties in which the facility is or will be located and to the governing body of any county, municipality, Indian tribe or pueblo when the boundary of the territory of the county, municipality, Indian tribe or pueblo is within a ten mile radius of the property on which the facility is proposed to be constructed, operated or closed;
C. published once in a newspaper of general circulation in each county in which the property on which the facility is proposed to be constructed, operated or closed is located. This notice shall appear in either the classified or legal advertisements section of the newspaper and at one other place in the newspaper calculated to give the general public the most effective notice and, when appropriate, shall be printed in both English and Spanish; and
D. posted in at least four publicly accessible and conspicuous places, including the proposed or existing facility entrance on the property on which the facility is or is proposed to be located.
Laws 1990, ch. 99, § 22; 1993, ch. 172, § 1.
NMSA 1978, § 74-9-23 Solid waste facility permit; when application deemed complete; notice of hearing
74-9-23. Solid waste facility permit; when application deemed complete; notice of hearing
A. An application for a solid waste facility permit under the provisions of Section 20 [74-9-20 NMSA 1978] of the Solid Waste Act shall be deemed complete when the director has received all information required under that section and Section 21 [74-9-21 NMSA 1978] of the Solid Waste Act. At any time during the application process that the director determines that additional information is required from an applicant or that information furnished is incomplete, he shall notify the applicant in writing within ten days of the date that determination is made.
B. Within sixty days of the director's determination that a permit application is complete, the director shall set a date, time and location for a hearing on the application and give notice of the hearing date, time and location and a brief description of the application in the same manner as required in Section 22 [74-9-22 NMSA 1978] of the Solid Waste Act and to any person who makes a written request to the director for notice regarding a specific application. Except as otherwise provided in this section, hearings shall be conducted in accordance with the provisions of Section 29 [74-9-29 NMSA 1978] of the Solid Waste Act.
Laws 1990, ch. 99, § 23.
NMSA 1978, § 74-9-24 Solid waste facility permit; issuance and denial; grounds; notification of decision; permit recording requirement
74-9-24. Solid waste facility permit; issuance and denial; grounds; notification of decision; permit recording requirement
A. The director, within one hundred eighty days after the application is deemed complete and after a public hearing, shall issue a permit, issue a permit with terms and conditions or deny a permit application. The director may deny a permit application on the basis of information in the application or evidence presented at the hearing, or both, if the director makes a finding that granting the permit would be contradictory to or in violation of the Solid Waste Act or any regulation adopted pursuant to the provisions of that act. The director may also deny a permit application if the applicant fails to meet the financial responsibility requirements established by the board pursuant to the provisions of Subsection A of Section 74-9-8 NMSA 1978 and Section 74-9-35 NMSA 1978.
B. The director may deny any permit application or revoke an existing permit if the director has reasonable cause to believe that a person required to be listed on the application pursuant to Section 74-9-20 NMSA 1978 has:
(1) knowingly misrepresented a material fact in application for a permit;
(2) refused to disclose or failed to disclose the information required pursuant to the provisions of Section 74-9-21 NMSA 1978;
(3) been convicted of a felony or other crime involving moral turpitude within ten years immediately preceding the date of the submission of the permit application;
(4) been convicted of a felony, within ten years immediately preceding the date of the submission of the permit application, in any court for any crime defined by state or federal statutes as involving or being restraint of trade, price-fixing, bribery or fraud;
(5) exhibited a history of willful disregard for environmental laws of any state or the United States; or
(6) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States.
C. In making a finding under Subsection B of this section, the director may consider aggravating and mitigating factors presented by any party at the hearing.
D. If an applicant whose permit is being considered for denial or revocation on any basis provided in this section has submitted an affirmative action plan that has been approved in writing by the director and plan approval includes a period of operation under a conditional permit or license that will allow the applicant a reasonable opportunity to affirmatively demonstrate its rehabilitation, the director may issue a conditional license for a reasonable period of time of operation. In approving an affirmative action plan intended to affirmatively demonstrate rehabilitation, the director may consider the following factors:
(1) implementation by the applicant of formal policies;
(2) training programs and management control to minimize and prevent the occurrence of future violations;
(3) installation by the applicant of internal environmental auditing programs;
(4) the discharge of individuals convicted of any crimes set forth in Subsection B of this section; and
(5) such other factors as the director may deem relevant.
E. Within sixty days of the date of the closing of the hearing on a permit application, the director shall notify the applicant by certified mail of the issuance, denial or issuance with conditions of a permit and the reasons for it. Any person who has made a written request to the director to be notified of the action taken on the application shall be given written notice of the director's action.
F. No permit for the operation of a solid waste facility shall be valid until the permit or a notice of the permit and a legal description of the property on which the facility is located are filed and recorded in the office of the county clerk in each county in which the facility is located.
G. Except as otherwise provided by law:
(1) each permit issued for a publicly owned and publicly or privately operated new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit or for twenty years, whichever is less. Each permit issued for a publicly owned landfill, transfer station, recycling facility or composting facility that is privately operated pursuant to a contract of no more than four years duration entered into in accordance with the state or local procurement code shall remain in effect throughout the active life of the landfill, transfer station, recycling facility or composting facility as described in the approved permit or for twenty years, whichever is less. Each time the contract is renewed, the director shall review the contract to determine whether the term of the permit shall be governed by this paragraph or Paragraph (2) of this subsection. Each permit shall be reviewed by the department of environment at least once every ten years. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions;
(2) each permit issued for a privately owned new or repermitted existing landfill, transfer station, recycling facility or composting facility shall remain in effect throughout the active life of the facility as described in the approved permit or for twenty years, whichever is less. Owners of privately owned facilities permitted prior to July 1, 2011 shall submit in writing to the division no later than September 1, 2011 their decision to opt into the twenty-year permit cycle and provide information that demonstrates that such period is less than the remaining active life of the facility. If a privately owned facility opts into the twenty-year permit cycle, the twenty-year permit term shall be reduced by the number of years the facility has operated under its current permit. For privately owned facilities that opt into the twenty-year permit term, the facility owners shall adjust financial assurance coverage to accommodate requirements pursuant to the solid waste management regulations. Each permit shall be reviewed at least every five years by the department of environment. Interested parties may petition the department for review, in addition to the five-year review, provided that the director has discretion to determine whether there is good cause for such an additional review. The review shall address the operation, compliance history, financial assurance and technical requirements for the landfill, transfer station, recycling facility or composting facility. At the time of the review there shall be public notice in the manner prescribed by Section 74-9-22 NMSA 1978. If the secretary of environment determines that there is significant public interest, a nonadjudicatory hearing shall be held as part of the review. The secretary may require appropriate modifications of the permit, including modifications necessary to make the permit terms and conditions consistent with statutes, regulations or judicial decisions; and
(3) the term of permits for facilities not specified by this subsection shall be governed by existing or amended regulations adopted by the board.
H. The director shall issue separate special waste permits for all solid waste facilities that transfer, process, transform, recycle or dispose of special waste pursuant to regulations adopted by the board.
Laws 1990, ch. 99, § 24; 1993, ch. 246, § 3; 2011, ch. 125, § 1.
NMSA 1978, § 74-9-25 Application for modification of a permit; review by director and action pursuant to regulations
74-9-25. Application for modification of a permit; review by director and action pursuant to regulations
The board shall adopt regulations setting forth procedures and requirements for the director's review and action on a permittee's application to modify a permit.
Laws 1990, ch. 99, § 25.
NMSA 1978, § 74-9-26 Nonadjudicatory actions under Solid Waste Act that are subject to prior hearing requirement
74-9-26. Nonadjudicatory actions under Solid Waste Act that are subject to prior hearing requirement
The following nonadjudicatory actions or proposed actions by the board are subject to prior hearing in accordance with the provisions of Section 27 [74-9-27 NMSA 1978] of the Solid Waste Act:
A. approval or modification of the plan;
B. designation of solid waste districts and changes in boundaries of solid waste districts;
C. adoption of any fees to be charged under the provisions of Section 39 [74-9-39 NMSA 1978] of the Solid Waste Act; and
D. adoption of substantive and procedural regulations.
Laws 1990, ch. 99, § 26.
NMSA 1978, § 74-9-27 Hearing provisions for nonadjudicatory actions
74-9-27. Hearing provisions for nonadjudicatory actions
A. The board shall adopt procedural regulations to govern the procedures to be followed in hearings on nonadjudicatory actions of the board. As a minimum, the procedural regulations shall provide:
(1) for hearings to be public and scheduled at times that allow greater public participation;
(2) requirements for prior notice of the hearing and the methods for giving that notice, which shall be designed to inform interested and affected persons of the nature of the action to be considered and the date, time and place of the hearing;
(3) for maintenance of a list of persons that desire to have notice of the hearings and provisions for giving notice to those persons;
(4) a reasonable opportunity for all persons desiring to be heard on the action under consideration to be heard without making the hearing process unreasonably lengthy or cumbersome or burdening the record with unnecessary repetition;
(5) for the board to designate a hearing officer to conduct a hearing and make a report and recommendation to the board;
(6) for the maintenance of a record of the hearing proceedings and assessment of the costs of any transcription of testimony that is required for review purposes; and
(7) for the place of the hearing to be in Santa Fe, and at other places the board may prescribe, for hearings on actions of general statewide application and for hearings on actions of limited local application to be held at a place in the area affected.
B. Actions taken by the board following a hearing on nonadjudicatory actions shall be:
(1) written and shall state the reasons for the action;
(2) made public when taken;
(3) communicated to all persons that have made a written request for notification of the action taken; and
(4) taken within not more than sixty days after the closing of the hearing or the date of submission of a report by a hearing officer.
Laws 1990, ch. 99, § 27.
NMSA 1978, § 74-9-28 Prior hearing requirement for all adjudicatory actions
74-9-28. Prior hearing requirement for all adjudicatory actions
A. The following adjudicatory actions by the division are subject to prior hearing in accordance with the requirements of Section 29 [74-9-29 NMSA 1978] of the Solid Waste Act, in addition to any specific hearing requirements and procedures under other provisions of that act:
(1) issuance, refusal to issue or modify and revocation of permits for solid waste facilities;
(2) administrative enforcement actions; and
(3) actions on requests for variances and exemptions.
B. In any adjudicatory hearing, the director has and may delegate to the hearing officer the power to issue subpoenas for the attendance and testimony of witnesses and the production of relevant documentary evidence. The subpoenas may be enforced by action brought in the district court for the county in which the hearing is held.
Laws 1990, ch. 99, § 28.
NMSA 1978, § 74-9-29 Hearing provisions for adjudicatory actions
74-9-29. Hearing provisions for adjudicatory actions
A. The director shall adopt procedural regulations to govern the procedures to be followed in hearings on adjudicatory actions of the director. No adjudicatory actions under the Solid Waste Act shall be taken until these regulations are adopted. As a minimum, the procedural regulations shall provide:
(1) for hearings to be public;
(2) requirements for prior notice of the variance or exemption request hearings and the methods for giving that notice, which shall be designed to inform interested and affected persons of the nature of the action to be considered and the date, time and place of the hearing;
(3) for maintenance of a list of persons that desire to have notice of variance request hearings and provisions for giving notice to those persons;
(4) a reasonable opportunity for all persons desiring to be heard on a variance or exemption request or a permit action to be heard without making the hearing process unreasonably lengthy or cumbersome or burdening the record with unnecessary repetition;
(5) procedures for discovery;
(6) assurance that procedural due process requirements are satisfied;
(7) for the director to designate a hearing officer to conduct a hearing and make a report and recommendation to the director;
(8) for the maintenance of a record of the hearing proceedings and assessment of the costs of any transcription of testimony that is required for judicial review purposes; and
(9) for the place of the hearing to be in Santa Fe, and at other places the board may prescribe, for hearings on actions of general statewide application, for hearings on actions of limited local application to be held at a place in the area affected, and for enforcement actions to be heard in Santa Fe.
B. Actions taken by the director following a hearing on adjudicatory actions shall be:
(1) written and shall state the reasons for the action;
(2) made public when taken;
(3) communicated to all persons that have made a written request for notification of the action taken; and
(4) taken within not more than thirty days after the closing of the hearing or the date of submission of a report by a hearing officer.
Laws 1990, ch. 99, § 29.
NMSA 1978, § 74-9-30 Judicial review of administrative actions
74-9-30. Judicial review of administrative actions
A. Any person adversely affected by an administrative action taken by the board or the director may appeal the action to the court of appeals. The appeal shall be on the record made at the hearing. To support his appeal, the appellant shall make arrangements with the division for a sufficient number of transcripts of the record of the hearing on which the appeal is based. The appellant shall pay for the preparation of the transcripts.
B. On appeal, the court of appeals shall set aside the administrative 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.
Laws 1990, ch. 99, § 30.
NMSA 1978, § 74-9-31 Prohibited acts
74-9-31. Prohibited acts
A. Except as provided in Section 73 of the Solid Waste Act and Subsection B of this section, no person shall:
(1) dispose of any solid waste in a place other than a solid waste facility:
(a) having a permit issued under the Solid Waste Act;
(b) having a permit for solid waste disposal issued under the Environmental Improvement Act [Chapter 74, Article 1 NMSA 1978]; or
(c) otherwise authorized to accept solid waste for disposal or transformation under regulations adopted by the board under the Environmental Improvement Act;
(2) dispose of any solid waste in a solid waste facility when a regulation of the board prohibits the disposal of that particular type of solid waste in that facility;
(3) construct, operate or close a solid waste facility unless the facility has a permit from the division for the described action;
(4) modify a solid waste facility unless the facility has applied for and received permission from the director for the modification pursuant to regulations adopted under Section 74-9-25 NMSA 1978; or
(5) dispose of any solid waste in this state in a manner that harms the environment or endangers the public health or safety.
B. The provisions of Subsection A of this section do not prohibit:
(1) a person who is a homeowner, residential lessee or tenant or agricultural enterprise from disposing on the property he owns, rents or leases solid waste generated on that property;
(2) a person occupying property from disposing of domestic solid waste generated on the property if the property is located in a place that makes it not feasible to dispose of the solid waste in a permitted solid waste facility and the disposal of the solid waste does not harm the environment or endanger the public health or safety and does not violate any provision of the Solid Waste Act or any regulation adopted under that act; or
(3) a person in possession of property from disposing on that property construction and demolition debris or yard refuse generated on the property if the disposition of the solid waste does not violate any provision of the Solid Waste Act or any regulation adopted under that act.
Laws 1990, ch. 99, § 31; 1995, ch. 132, § 1.
NMSA 1978, § 74-9-32 Exemptions; requirements for granting
74-9-32. Exemptions; requirements for granting
Exemptions from the application of the provisions of the Solid Waste Act may be applied for and shall be issued by the board, either for a single applicant or a group of applicants having substantially identical grounds for the issuance of the exemption, if the board determines after a hearing that the applicant or group of applicants is subject to requirements or regulations under an applicable federal or state law that imposes as stringent or more stringent requirements for the applicant's or applicants' management of its solid waste than the provisions of the Solid Waste Act and regulations adopted under that act. Exemptions issued under this section shall be reviewed for renewal at time intervals determined by the board for each exemption, and the date for renewal shall be stated in the exemption.
Laws 1990, ch. 99, § 32.
NMSA 1978, § 74-9-33 Facilities; entry by division; availability of records to division and others
74-9-33. Facilities; entry by division; availability of records to division and others
A. The director or any authorized representative, employee or agent of the division:
(1) may enter any solid waste facility at any reasonable time for the purpose of making an inspection or investigation of solid waste management practices;
(2) may at any reasonable time, enter, inspect and monitor any solid waste compaction facilities that compact solid waste for disposal in a solid waste district different from the district in which the compaction facility is located;
(3) may take samples of the waste, soil, air or water and analyze samples of that waste, soil, air or water in order to detect the nature and concentration of contaminants, including those produced by leaching, natural decomposition, gas production or hazardous products in the solid waste facility. The owner or operator shall have the right to split the sample and conduct his own analysis;
(4) may, for the purposes of developing or assisting in the development of any regulation, conducting any study, taking corrective action or enforcing the provisions of the Solid Waste Act conduct monitoring or testing of the equipment, contents or surrounding soils, air, surface water or ground water at a solid waste facility; and
(5) shall make reasonable periodic inspections without prior notice at every solid waste facility in order to implement effectively and enforce the requirements of the Solid Waste Act or the solid waste facility regulations and may, in coordination with the secretary of highway and transportation, conduct at weigh stations, or any other adequate site or facility, inspections of solid waste in transit.
B. Any commercial hauler that disposes of solid waste in a solid waste facility shall allow inspection of its vehicles, transfer stations, collection facilities or any other facilities designed for the collection or transportation of solid waste under the same conditions and circumstances as outlined in Subsection A of this section.
C. Any records, reports or information obtained by the division under this section shall be available to the public, except that upon a showing satisfactory to the division that records, reports or information, or a particular part thereof, to which the director or his authorized representatives have access under this section, if made public, would divulge information entitled to protection under the provisions of 18 U.S.C. Section 1905, such information or particular portion thereof shall be considered confidential, except that such record, report, document or information may be disclosed to officers, employees or authorized representatives of the United States concerned with carrying out the federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., or when relevant in any proceedings under the Solid Waste Act.
D. Any person not subject to the provisions of 18 U.S.C. Section 1905 who knowingly and willfully divulges or discloses any information entitled to protection under Subsection C of this section shall, upon conviction, be subject to a fine of not more than five thousand dollars ($5,000) or to imprisonment not to exceed one year or both.
E. In submitting data under the Solid Waste Act, a person required to provide such data may:
(1) designate the data the person believes is entitled to protection under Subsection C of this section; and
(2) submit such designated data separately from other data submitted under the Solid Waste Act. A designation under Paragraph (1) of this subsection shall be made in writing and in such manner as the director may prescribe.
Laws 1990, ch. 99, § 33.
NMSA 1978, § 74-9-34 Liability; defenses; indemnification
74-9-34. Liability; defenses; indemnification
A. As used in this section:
(1) "generator" means the United States or a state, including New Mexico, or any agency, department, instrumentality, office, institution or political subdivision of a state in which any solid waste disposed of in a solid waste facility in New Mexico originated;
(2) "responsible party" means any person other than a generator upon whom liability is imposed under Subsection B of this section; and
(3) "costs" means the costs of removal or remedial action incurred by this state or any of its counties or municipalities because of a release or threatened release of contaminants from a solid waste facility that results in the incurring of those costs by the specified governmental entity.
B. The following persons shall be strictly liable for costs:
(1) the owner of the solid waste facility;
(2) the operator of the solid waste facility;
(3) any person:
(a) having a permit issued under the Solid Waste Act;
(b) having a permit for solid waste disposal issued under the Environmental Improvement Act [Chapter 74, Article 1 NMSA 1978]; or
(c) otherwise authorized to accept solid waste for disposal or transformation under regulations adopted by the board under the Environmental Improvement Act;
(4) any person who, at the time of disposal of any solid waste in the solid waste facility, owned, operated or had a permit or registration certificate to operate the solid waste facility;
(5) any person who by agreement or otherwise arranged for disposal or treatment or transportation for disposal or treatment of solid waste owned or possessed by that person and disposed of in the solid waste facility;
(6) any person who accepted any solid waste for transport to the solid waste facility; and
(7) any generator.
C. A person otherwise liable under Subsection B of this section shall not be liable if he can establish by a preponderance of the evidence that:
(1) the release of contaminants and the damages resulting therefrom were caused solely by an act of God or an act of war; or
(2) he is an owner who:
(a) at the time he acquired the property, did not know and had no reason to know that the property had been used for a solid waste facility;
(b) is a governmental entity that acquired the property by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority; or
(c) acquired the property by inheritance or devise.
D. If any responsible party that is liable for a release or threatened release fails without sufficient cause to properly provide removal or remedial action upon order of the director, that person shall be liable to the state or the appropriate political subdivision for punitive damages in an amount at least equal to, and not more than three times the amount of, any costs incurred as a result of the failure to take proper action. The director is authorized to commence a civil action against any such person to recover the damages, which shall be in addition to any costs recovered from the person. Any amounts received by the state or the appropriate political subdivision pursuant to this subsection shall be deposited in the solid waste facility grant fund.
E. The court, in accordance with equitable principles, shall apportion an award of costs or damages, or both, among defendants found liable under this section.
F. No state agency or political subdivision shall be liable under this section for costs or damages as a result of its actions taken in response to an emergency created by the release or threatened release by or from a solid waste facility owned by another person.
G. No indemnification or similar agreement shall be effective to transfer from the owner or operator of any solid waste facility, or from any person who may be liable for a release or threatened release under this section, to any other person the liability imposed under this section. Nothing in this subsection bars any agreement to insure, hold harmless or indemnify a party to that agreement for any liability under this section.
H. Nothing in this section bars or replaces any cause of action available to any person that existed before its enactment. The causes of action of this section are supplemental to existing causes of action.
Laws 1990, ch. 99, § 34.
NMSA 1978, § 74-9-35 Financial responsibility for solid waste generators and operators of solid waste facilities
74-9-35. Financial responsibility for solid waste generators and operators of solid waste facilities
A. The board shall adopt regulations establishing financial responsibility requirements. The regulations shall be designed to assure that there are adequate sources of funds to provide for:
(1) closure, post-closure inspection and maintenance and environmental monitoring and control;
(2) removal and disposal of buildings, fences, roads and other improvements;
(3) reclamation of affected or contaminated lands and waters;
(4) construction of any solid waste cover or containment system required as a condition of any solid waste facility permit;
(5) stabilization, removal and off-site treatment or disposal of any contaminated material that is being stored or treated;
(6) decontamination, dismantling and removal of any solid waste storage, treatment or disposal equipment;
(7) operation of any environmental monitoring systems or pollution control systems that are required as a condition of any solid waste facility permit or by order of the director; and
(8) conducting, only for landfill disposal facilities, periodic post-closure inspections of cover systems, surface water diversion structures, monitor wells or systems, pollutant detection and control systems and performing maintenance activities to correct deficiencies that are discovered.
B. Sources of funds provided to meet financial responsibility requirements established in this section shall be available during the operating life of the solid waste facility and for a post-closure period to be set by the board.
C. The amount of any financial responsibility requirement shall be established by the director in accordance with procedures contained in regulations of the board, but shall not be less than an amount sufficient to satisfy the purposes specified in Subsection A of this section.
D. The acceptable methods of furnishing evidence of financial responsibility shall be specified by the board and shall include evidence of trust funds, performance bonds, insurance and irrevocable letters of credit in combination with other methods specified in this section; provided that irrevocable letters of credit shall not constitute more than fifty percent of the total financial responsibility required. Methods for evidencing financial responsibility for local governments shall include all methods approved by the federal environmental protection agency. Local government owners of solid waste facilities may determine the method of evidencing financial responsibility required of private operators under contract or agreement with the local government. Such evidence of financial assurance shall be approved by the director. All documents evidencing financial assurances provided pursuant to this section shall be payable to the New Mexico governmental entity or entities that own or operate the solid waste facility that is the subject of the financial assurance. If no New Mexico governmental entity or governmental entities own or operate the solid waste facility that is the subject of the financial assurance, the financial assurance shall provide for payment to the state of New Mexico.
E. The United States, the state of New Mexico and any agency, department, instrumentality, office or institution of those governments shall not be required to provide any financial assurances pursuant to this section. This exemption shall not apply, however, to any private person who contracts with the state of New Mexico or any agency, department, instrumentality, office, institution or political subdivision of the state of New Mexico.
Laws 1990, ch. 99, § 35; 1993, ch. 246, § 4.
NMSA 1978, § 74-9-35.1 Legislative findings
74-9-35.1. Legislative findings
The legislature finds:
A. the federal environmental protection agency, effective April 9, 1994, will require owners and operators of solid waste facilities to meet certain specified financial assurance criteria;
B. the only exceptions allowed will be "owners or operators who are state or federal government entities whose debts and liabilities are the debts and liabilities of a state or the United States";
C. the federal environmental protection agency does not consider political subdivisions of a state to be "state or federal government entities";
D. the Solid Waste Act currently exempts political subdivisions of the state from the requirement to show financial responsibility;
E. if New Mexico fails to require financial assurance from political subdivisions of the state, New Mexico may lose primacy over solid waste control, and political subdivisions of the state will in any event be required in 1994 to provide a showing of financial responsibility; and
F. it is in the best interest of the state to retain primacy in the field of solid waste control.
Laws 1993, ch. 246, § 1.
NMSA 1978, § 74-9-35.2 Review of contracts and leases
74-9-35.2. Review of contracts and leases
All leases and contracts for the operation of landfills, transfer stations, recycling facilities and composting facilities between local government entities and private parties shall be reviewed by the attorney general, who shall provide recommendations on legal issues to the department and the local public entity at least fifteen days prior to the approval of the contract or within thirty days after his receipt of the contract, whichever is later.
Laws 1993, ch. 246, § 2.
NMSA 1978, § 74-9-36 Enforcement; compliance orders
74-9-36. Enforcement; compliance orders
A. Whenever, on the basis of any information, the director determines that any person has violated, is violating or threatens to violate any requirement of the Solid Waste Act, any regulation promulgated pursuant to that act or any condition of a permit issued under that act, the director may:
(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or
(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.
B. Any order issued pursuant to Subsection A of this section may include a suspension or revocation of any permit issued by the director. Any penalty assessed in the order shall not exceed five thousand dollars ($5,000) per day of noncompliance for each violation. In assessing such penalty, the director shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.
C. If a violator fails to take corrective action within the time specified in a compliance order, the director may:
(1) assess a civil penalty of not more than ten thousand dollars ($10,000) for each day of continued noncompliance with the order; and
(2) suspend or revoke any permit issued to the violator under the Solid Waste Act.
D. Whenever on the basis of any information the director determines that there is or has been a release of contaminants into the environment from a solid waste facility, the director may issue an order requiring corrective action, including corrective action beyond a solid waste facility's boundaries or such other response measure as he deems necessary to protect human health or the environment, or may commence an action in district court in the district in which the solid waste facility is located for appropriate relief, including a temporary or permanent injunction.
E. Any order issued under Subsection D of this section may include a suspension or revocation of a permit to operate a solid waste facility and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance. If any person named in an order fails to comply with the order, the director may assess and such person shall be liable to the state for a civil penalty in an amount not to exceed five thousand dollars ($5,000) for each day of noncompliance with the order.
F. Any order issued pursuant to this section, any other enforcement proceeding initiated under this section or any claim for personal or property injury arising from any conduct for which financial responsibility must be provided may be issued to or taken against the insuror or guarantor of an owner or operator of a solid waste facility if:
(1) the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the federal Bankruptcy Code [11 U.S.C. § 101 et seq.]; or
(2) jurisdiction in any state or federal court cannot with reasonable diligence be obtained over an owner or operator likely to be solvent at the time of judgment.
G. Any order issued pursuant to this section shall become final unless, no later than thirty days after the order is served, the person or persons named therein submit a written request to the director for a public hearing. Upon such request the director shall promptly conduct a public hearing. The director shall appoint an independent hearing officer to preside over the public hearing. That hearing officer shall make and preserve a complete record of the proceedings and forward his recommendation based thereon to the director, who shall make the final decision.
H. In connection with any proceeding under this section, the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.
I. Penalties collected pursuant to an administrative order shall be deposited in the state treasury to be credited to the solid waste facility grant fund.
Laws 1990, ch. 99, § 36.
NMSA 1978, § 74-9-37 Penalty; criminal
74-9-37. Penalty; criminal
A. Any person who knowingly violates any paragraph of Subsection A of Section 74-9-31 NMSA 1978:
(1) if the violation involves a quantity of solid waste that is less than five thousand pounds, is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978; or
(2) if the violation involves a quantity of solid waste that is five thousand pounds or greater, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
B. Any person who knowingly violates any paragraph of Subsection A of Section 74-9-31 NMSA 1978 and the violation involves any quantity of infectious waste is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
C. Any person who is convicted of a second or subsequent violation of Section 74-9-31 NMSA 1978 pursuant to the provisions of Paragraph (2) of Subsection A or Subsection B or D of this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
D. Any person who knowingly omits any material information or knowingly makes a false material statement or representation required pursuant to the provisions of Section 74-9-20 or 74-9-21 NMSA 1978 is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
Laws 1990, ch. 99, § 37; 1995, ch. 132, § 2.
NMSA 1978, § 74-9-38 Penalty; civil
74-9-38. Penalty; civil
Any person who violates any provision of Section 31 [74-9-31 NMSA 1978] of the Solid Waste Act or any regulation adopted pursuant to that act may be assessed a civil penalty not to exceed five thousand dollars ($5,000) for each day during any portion of which a violation occurs. All civil penalties assessed and collected shall be deposited in the solid waste facility grant fund.
Laws 1990, ch. 99, § 38.
NMSA 1978, § 74-9-39 Solid waste assessment fee
74-9-39. Solid waste assessment fee
A. A solid waste assessment fee shall be imposed upon the disposal of solid waste by a commercial hauler at any solid waste facility if the solid waste was generated outside the solid waste district in which the solid waste facility is located. A commercial hauler disposing solid waste from twin-plant industries having domestic operations within a solid waste district shall be exempt from payment of the solid waste assessment fee on the disposed solid waste if the industries involved are required under Mexican law to have the solid waste returned to the United States.
B. The board shall establish the solid waste assessment fee. The fee established by the board shall remain in effect until July 1, 1993. The division shall prepare a recommended permanent fee structure and present it to the first regular session of the forty-first legislature for its consideration. In establishing the fee, the board shall take into account all factors relevant to the cost of disposal of the solid waste, including the following:
(1) the impact of solid waste disposal on air, water, land and other resources;
(2) the effect of solid waste disposal on the value of public and private property;
(3) the costs of protection of the public health, safety, welfare and the environment associated with the disposal of solid waste in the solid waste district;
(4) the costs of out-of-district inspection and monitoring;
(5) the costs and risks of solid waste transportation; and
(6) the administrative costs incurred by the collecting governmental entity.
C. The fee imposed by this section shall be in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility.
D. The fee imposed by this section shall be paid by the commercial hauler disposing of solid waste at a solid waste facility and shall be collected by the operator of the solid waste facility, held in trust in a separate account for the benefit of the state and remitted to the taxation and revenue department. Operators collecting fees under this section may retain ten percent of the fee collected for administrative purposes. The fee accrues at the time the solid waste is disposed of in a solid waste facility. The fee imposed by this section shall be administered as if it was a tax, in accordance with the provisions of the Tax Administration Act [Chapter 7, Article 1 NMSA 1978], and shall be remitted within thirty days from the end of the month in which the fee is collected.
E. A commercial hauler shall not be required to pay the solid waste assessment fee for disposal in a solid waste facility of solid waste generated outside the district in which the solid waste facility is located if:
(1) the solid waste was generated in a commercial, industrial, transportation and population center in which the commercial hauler provided solid waste disposal service during the 1989 calendar year; and
(2) the solid waste is disposed of in a solid waste district in which the commercial hauler disposed of solid waste generated in that commercial, industrial, transportation and population center during the 1989 calendar year.
F. A distribution under the Tax Administration Act of the net proceeds of the fees collected pursuant to this section shall be made to the solid waste facility grant fund.
Laws 1990, ch. 99, § 39; 1991, ch. 194, § 6.
NMSA 1978, § 74-9-40 Grants program; duties of division
74-9-40. Grants program; duties of division
The division shall:
A. establish a program to make grants to counties and municipalities, individually or jointly, for the establishment or modification of solid waste facilities or for contracting for solid waste services in accordance with the Solid Waste Act and regulations of the board pursuant to that act; and
B. prepare an annual report to the governor and the legislature on the grants program; and
C. award grants only to counties and municipalities that meet the criteria established by the division.
Laws 1990, ch. 99, § 40.
NMSA 1978, § 74-9-41 Solid waste facility grant fund created; administration
74-9-41. Solid waste facility grant fund created; administration
A. There is created in the state treasury a fund to be known as the "solid waste facility grant fund". The division shall administer the fund and make grants from the fund in accordance with the Solid Waste Act. Earnings on balances in the fund 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 solid waste facility grant fund.
B. The division shall deposit in the solid waste facility grant fund all federal funds allocated to the state for the purpose of making grants to counties, municipalities and post-secondary educational institutions for solid waste facilities.
C. State money appropriated to the division to carry out the provisions of this section may be used to match any eligible federal funds allocated to the state for the purpose of making grants to counties or municipalities to implement the provisions of the Solid Waste Act.
Laws 1990, ch. 99, § 41.
NMSA 1978, § 74-9-42 No preemption of local authority
74-9-42. No preemption of local authority
Nothing in the Solid Waste Act limits or is intended to limit the authority of any county or municipality to adopt and enforce solid waste management requirements more stringent than those in the Solid Waste Act. Nothing in the Solid Waste Act modifies or limits, or is intended to modify or limit, the authority of any county or municipality to exercise planning and zoning authority.
Laws 1990, ch. 99, § 42.
NMSA 1978, § 74-9-43 Authority to accept nondomestic oil, gas and geothermal wastes
74-9-43. Authority to accept nondomestic oil, gas and geothermal wastes
A. A solid waste facility may accept for disposal nondomestic waste. For the purposes of this section, "nondomestic waste" means waste associated with the exploration, development, production, transportation, storage, treatment or refinement of crude oil, natural gas, carbon dioxide gas or geothermal energy, but does not include drilling fluids, produced waters, petroleum liquids, petroleum sludges or, except in the event of an emergency declared by the director of the oil conservation division of the energy, minerals and natural resources department, petroleum-contaminated soils associated with the exploration, development, production, transportation, storage, treatment or refinement of crude oil or natural gas.
B. The solid waste facility may accept nondomestic waste for disposal with the approval of the oil conservation division of the energy, minerals and natural resources department pursuant to its authority under the Oil and Gas Act [Chapter 70, Article 2 NMSA 1978] if the nondomestic waste otherwise meets the requirements of the Solid Waste Act applicable to the solid waste facility. Upon presentation for disposal, nondomestic waste shall be regulated in the same manner as solid waste for purposes of the Solid Waste Act.
C. A solid waste facility operator proposing to accept for disposal nondomestic waste shall comply with rules adopted pursuant to the Solid Waste Act applicable to manifesting, testing and inspection of solid waste and any rules adopted pursuant to the Solid Waste Act applicable to record keeping for solid waste.
Laws 2001, ch. 67, § 1.
Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18577/index.doFetched: 10/20/2026