NM Stat § 74-4-4.2 (2021)
2021 New Mexico Statutes|Chapter 74 - Environmental Improvement|Article 4 - Hazardous Wastes|Section 74-4-4.2 - Permits; issuance; denial; modification; suspension; revocation.

A. An application for a permit pursuant to the Hazardous Waste Act shall contain information required pursuant to Section 74-4-4.7 NMSA 1978 or to regulations promulgated by the board and shall include: (1) estimates of the composition, quantity and concentration of any hazardous waste identified or listed under Subsection A of Section 74-4-4 NMSA 1978 or combinations of any hazardous waste and other solid waste proposed to be disposed of, treated, transported or stored and the time, frequency or rate at which the waste is proposed to be disposed of, treated, transported or stored; and (2) an identification and description of, and other pertinent information about, the site where hazardous waste or the products of treatment of hazardous waste will be disposed of, treated, transported to or stored. B. Hazardous waste permits shall require corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage or disposal facility seeking a permit under this section. C. The department shall provide timely review on all permit applications. Upon a determination by the secretary that the applicant has met the requirements adopted pursuant to Section 74-4-4 NMSA 1978, the secretary may issue a permit or a permit subject to any conditions necessary to protect human health and the environment for the facility. D. The secretary may deny any permit application or modify, suspend or revoke any permit issued pursuant to the Hazardous Waste Act if the applicant or permittee has: (1) knowingly and willfully misrepresented a material fact in the application for a permit; (2) refused to disclose the information required under the provisions of Section 74-4-4.7 NMSA 1978; (3) been convicted in any court, within ten years immediately preceding the date of submission of the permit application, of: (a) a felony or other crime involving moral turpitude; or (b) a crime defined by state or federal statutes as involving or being in restraint of trade, price-fixing, bribery or fraud; (4) exhibited a history of willful disregard for environmental laws of any state or the United States; (5) had any permit revoked or permanently suspended for cause under the environmental laws of any state or the United States; or (6) violated any provision of the Hazardous Waste Act, any regulation adopted and promulgated pursuant to that act or any condition of a permit issued under that act. E. In making a finding under Subsection D of this section, the secretary may consider aggravating and mitigating factors. F. If an applicant or permittee whose permit is being considered for denial or revocation, respectively, on any basis provided by Subsection D of this section has submitted an action plan that has been approved in writing by the secretary, and plan approval includes a period of operation under a conditional permit that will allow the applicant or permittee a reasonable opportunity to demonstrate its rehabilitation, the secretary may issue a conditional permit for a reasonable period of time. In approving an action plan intended to demonstrate rehabilitation, the secretary may consider: (1) implementation by the applicant or permittee of formal policies; (2) training programs and management control to minimize and prevent the occurrence of future violations; (3) installation by the applicant or permittee of internal environmental auditing programs; (4) the applicant's release or the permittee's release subsequent to serving a period of incarceration or paying a fine, or both, after conviction of any crime listed in Subsection D of this section; and (5) any other factors the secretary deems relevant. G. Notwithstanding the provisions of Subsection D of this section: (1) a research, development and demonstration permit may be terminated upon the determination by the secretary that termination is necessary to protect human health or the environment; and (2) a permit may be modified at the request of the permittee for just cause as demonstrated by the permittee. H. No ruling shall be made on permit issuance, major modification, suspension or revocation without an opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing; provided, however, that the secretary may, pursuant to Section 74-4-10 NMSA 1978, order the immediate termination of a research development and demonstration permit whenever the secretary determines that termination is necessary to protect human health or the environment and may order the immediate suspension or revocation of a permit for a facility that has been ordered to take corrective action or other response measures for releases of hazardous waste into the environment. I. The secretary shall hold a public hearing on a minor permit modification if the secretary determines that there is significant public interest in the minor modification. J. The board shall provide a schedule of fees for businesses generating hazardous waste, conducting permitted hazardous waste management activities or seeking a permit for the management of hazardous waste, including but not limited to: (1) a hazardous waste business fee applicable to any business engaged in a regulated hazardous waste activity, which shall be an annual flat fee based on the type of activity; (2) a hazardous waste generation fee applicable to any business generating hazardous waste, which shall be based on the quantity of hazardous waste generated annually; however, when any material listed in Paragraph (2) of Subsection K of Section 74-4-3 NMSA 1978 is determined by the board to be subject to regulation under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, the board may set a generation fee under this paragraph for that waste based on its volume, toxicity, mobility and economic impact on the regulated entity; (3) a hazardous waste permit application fee, not exceeding the estimated cost of investigating the application and issuing the permit, to be paid at the time the secretary notifies the applicant by certified mail that the application has been deemed administratively complete and a technical review is scheduled; and (4) an annual hazardous waste permit management fee based on and not exceeding the estimated cost of conducting regulatory oversight of permitted activities. K. The department and a business generating hazardous waste, conducting permitted hazardous waste management activities or seeking a permit for the management of hazardous waste may enter into a voluntary fee agreement in addition to and that includes all of the fees required by Subsection J of this section. History: 1978 Comp., § 74-4-4.2, enacted by Laws 1981 (1st S.S.), ch. 8, § 6; 1987, ch. 179, § 4; 1989, ch. 322, § 4; 1992, ch. 43, § 3; 2003, ch. 41, § 1; 2006, ch. 100, § 1. ANNOTATIONSCross references. — For Subtitle C of the federal Resource Conservation and Recovery Act, see 42 U.S.C. § 6921. The 2006 amendment, effective July 1, 2006, added Subsection K to provide for voluntary fee agreements. The 2003 amendment, effective June 20, 2003, in Subsection A substituted "An" for "Each" at the beginning, deleted "as may be" following "shall contain information" near the beginning, deleted "pursuant" following "NMSA 1978 or" near the middle and substituted "and shall include" for "including information with respect to" near the end; substituted "of" for "with respect to" following "estimates" at the beginning of Paragraph A(1); inserted "an identification and description of, and other pertinent information about," at the beginning of Paragraph A(2); deleted "issued after April 8, 1987" following "Hazardous waste permits" near the beginning of Subsection B; substituted "department" for "division" near the beginning of Subsection C; inserted "conducting permitted hazardous waste management activities" following "generating hazardous waste" near the middle of Subsection J; inserted "of 1976" following "Recovery Act" near the middle of Paragraph J(2); and added Paragraph J(4). The 1992 amendment, effective March 6, 1992, substituted the present section catchline for "Permits; issuance and revocation; appeal"; inserted "pursuant to Section 74-4-4.7 NMSA 1978" in the introductory paragraph of Subsection A; twice substituted "secretary" for "director" in Subsection C; rewrote Subsection D; added present Subsections E, F, and G; redesignated former Subsection E as present Subsection H; inserted "major" near the beginning of Subsection H while substituting "secretary" for "division" near the middle of that subsection; added present Subsection I; redesignated former Subsection F as present Subsection J; substituted "secretary" for "director" in Subsection J(3); deleted former Subsections G and H, relating to appeal; and made minor stylistic changes throughout the section. Response to public comments. — The fact that the secretary issued a written response to public comments after issuing a final order does not establish the fact that the secretary did not consider public input when drafting the order. Citizen Action v. Sandia Corp., 2008-NMCA-031, 143 N.M. 620, 179 P.3d 1228, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674. Federal sovereign immunity waived. — Resource Conservation and Recovery Act (42 U.S.C. § 6961) waived federal sovereign immunity from certain state imposed permit conditions addressing the presence of radionuclides in the disposal of hazardous waste at the Los Alamos National Laboratory where the conditions imposed by the permit to incinerate hazardous waste at the laboratory implemented objective, preexisting state standard that was capable of uniform application and was considered a "requirement" under Resource Conservation and Recovery Act. U.S. v. N.M., 32 F.3d 494 (10th Cir. 1994). Permit modifications. — When the secretary of the New Mexico environment department modified a permit to operate a hazardous waste disposal site to clarify the type of waste that could be disposed of there, consistent with the permit's previous language, the modification was minor, under Subsection I of this section, so the secretary only had to hold a public hearing on the modification if there was significant public interest in the modification. Sw. Research & Info. Ctr. v. State, 2003-NMCA-012, 133 N.M. 179, 62 P.3d 270, cert. granted, 132 N.M. 551, 52 P.3d 411 (2002). When the secretary of the New Mexico environment department determined that a modification to a permit to operate a hazardous waste disposal site was minor, his decision about whether to hold a public hearing on that modification, due to significant public interest in the modification, was reviewable only for abuse of discretion. Sw. Research & Info. Ctr. v. State, 2003-NMCA-012, 133 N.M. 179, 62 P.3d 270, cert. granted, 132 N.M. 551, 52 P.3d 411 (2002). Permit modification did not require a public hearing. — Where the permittee of a hazardous waste disposal site was permitted to store low radiation contact-handled waste on the floor of the underground disposal rooms and high radiation remote-handled waste in boreholes in the walls of the disposal rooms; the permittee filed a request to modify the permit to authorize it to place a portion of the remote-handled waste in specially designed shielded containers on the floor of the disposal rooms rather that in boreholes; plaintiff claimed that when the remote-handled waste was loaded into shielded containers, it could be managed as contact-handled waste and stored on the floor of disposal rooms; in its permit modification request, the permittee stated that the permit modifications were needed to accommodate waste generators' use of shielded containers, increase the efficiency of shipment of remote-handled waste, and increase the efficiency with which remote-handled waste was managed, processed, and handled at the permittee's waste disposal site; the department held public meetings and received and responded to written comments from the public; the department determined that the permit modification request involved changes needed to maintain the waste disposal facility's capability to manage waste safely which did not require an adversarial public hearing before a hearing officer and approved the permit modification; plaintiff claimed that the modification request involved major changes in the permit that altered the facility or its operations which required a public adversarial hearing before a hearing officer; and plaintiff failed to show by argument or evidence in the record that the department violated federal regulations in approving the permit modification request, the department did not abuse its discretion by approving the permit modification without an adversarial public hearing before a hearing officer. Southwest Research & Info. Ctr. v. N.M. Env't Dep't, 2014-NMCA-098.