NM Stat § 74-9-24 (2021)
2021 New Mexico Statutes|Chapter 74 - Environmental Improvement|Article 9 - Solid Waste Act|Section 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. History: Laws 1990, ch. 99, § 24; 1993, ch. 246, § 3; 2011, ch. 125, § 1. ANNOTATIONSThe 2011 amendment, effective June 17, 2011, increased the maximum term of permits for private landfills from ten to twenty years and provided for the extension of existing ten year permits to twenty year permits. The 1993 amendment, effective April 6, 1993, changed the style of the statutory references at the end of Subsection A and in the introductory language and Paragraph (2) of Subsection B; deleted "and" after "permit or license" in the first sentence of Subsection D; and added Subsections G and H. The secretary (now director) of the environment department does not have the discretionary authority to deviate from the duration provision of Section 74-9-24 NMSA 1978 and limit the duration of a permit. Camino Real Envtl. Ctr., Inc. v. N.M. Dep't of Env't, 2010-NMCA-057, 148 N.M. 776, 242 P.3d 343, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Secretary (now director) cannot limit the duration of a permit. — Where the owner of a privately-owned existing landfill applied for a ten-year renewal of a permit to operate the landfill and permission to use new lined cells in the landfill, and the expected active life of the landfill was fifty years, the secretary (now director) of the environment department did not have the authority to limit the term of the permit to one year. Camino Real Envtl. Ctr., Inc. v. N.M. Dep't of Env't, 2010-NMCA-057, 148 N.M. 776, 242 P.3d 343, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Role of hearing officer. — While testimony relating to "social impact" may not require denial of a permit, the hearing officer must listen to concerns about adverse impacts on social well-being and quality of life, as well as report them accurately to the secretary (now director). Colonias Dev. Council v. Rhino Envtl. Svcs., Inc., 2005-NMSC-024, 138 N.M. 133, 117 P.3d 939. Secretary (now director) abused his discretion by limiting the scope of testimony during the public hearing and interpreting the department's role as confined to technical oversight. Colonias Dev. Council v. Rhino Envtl. Svcs., Inc., 2005-NMSC-024, 138 N.M. 133, 117 P.3d 939. Impact of additional landfill on community. — The secretary (now director) must evaluate whether the impact of an additional landfill on a community's quality of life creates a public nuisance or hazard to public health, welfare, of the environment. Colonias Dev. Council v. Rhino Envtl. Svcs., Inc., 2005-NMSC-024, 138 N.M. 133, 117 P.3d 939. Conditions attached to permit issuance. — The Act contemplates that the secretary (now director) will exercise her discretion in imposing conditions and terms, allowing her to address concerns raised at the public hearing when the applicant submits a plan to overcome potential causes for denial of the application. Although not formally labeled an affirmative action plan, the requirement that the landfill obtain department of environment approval of the liner and leachate collection system operate as the functional equivalent of such a plan. To disallow requirements or conditions in a permit based on demonstrations of future compliance with regulations would unduly limit the secretary's (now director's) options in responding to evidence introduced during the public hearing process. Joab, Inc. v. Espinosa, 1993-NMCA-113, 116 N.M. 554, 865 P.2d 1198. Consideration of past history of noncompliance. — Secretary (now director) did not abuse his discretion or act unreasonably in concluding that a municipality's past problems with the operation of its existing landfill and financial assurance compliance were not severe enough to warrant a discretionary denial of a permit for a new landfill where municipality did not provide year end financial statements for the latest fiscal years in the operating record of its existing landfill, municipality made efforts to deal with compliance problems at its existing landfill, municipality's compliance with regard to issues other than litter was average, and municipality corrected problems when the environment department sent notices of violation. Pickett Ranch, LLC v. Curry, 2006-NMCA-082, 140 N.M. 49, 139 P.3d 209. Burden of proof with regard to permit conditions. — To the extent a party argues for the inclusion of permit conditions that are not required by the relevant statutes and regulations, the party has the burden of proving that the conditions are necessary to protect the public health and the environment. Pickett Ranch, LLC v. Curry, 2006-NMCA-082, 140 N.M. 49, 139 P.3d 209.