2023 New Mexico Statutes › Chapter 74 - Environmental Improvement › Article 6 - Water Quality › Section 74-6-10.2 - Criminal penalties.

A. No person shall:
(1) discharge any water contaminant without a permit for the discharge, if a permit is required, or in violation of any condition of a permit for the discharge from the federal environmental protection agency, the commission or a constituent agency designated by the commission;
(2) make any false material statement, representation, certification or omission of material fact in an application, record, report, plan or other document filed, submitted or required to be maintained under the Water Quality Act;
(3) falsify, tamper with or render inaccurate any monitoring device, method or record required to be maintained under the Water Quality Act;
(4) fail to monitor, sample or report as required by a permit issued pursuant to a state or federal law or regulation; or
(5) introduce into a sewerage system or into a publicly owned treatment works any water contaminant or hazardous substance, other than in compliance with all applicable federal, state or local requirements or permits, that the person knew or reasonably should have known could cause personal injury or property damage, which causes the treatment works to violate an effluent limitation or condition in a permit issued to the treatment works pursuant to the Water Quality Act or applicable federal water quality statutes.
B. Any person who knowingly violates or knowingly causes or allows another person to violate Subsection A of this section is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
C. Any person who is convicted of a second or subsequent violation of Subsection A of this section is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
D. Any person who knowingly violates Subsection A of this section or knowingly causes another person to violate Subsection A of this section and thereby causes a substantial adverse environmental impact is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
E. Any person who knowingly violates Subsection A of this section and knows at the time of the violation that he is creating a substantial danger of death or serious bodily injury to any other person is guilty of a second degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
F. A single operational event that leads to simultaneous violations of more than one water contaminant parameter shall be treated as a single violation.
History:
Laws 1993, ch. 291, § 15.
ANNOTATIONS
Jury instruction.
— Following reversal of a conviction under this section for knowingly violating a permit that had expired, an appellate court may not remand for entry of judgment of conviction and re-sentencing for the lesser-included offence of the attempt to violate the Water Quality Act where the jury had not been instructed on the lesser offense at trial and defendant had not offered a defense at trial to the lesser-included offence.
State v. Villa
, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017,
rev'g
2003-NMCA-142, 134 N.M. 679, 82 P.3d 46.
Permit violation.
— Where defendant was charged with violating conditions of a permit which had "technically" expired as a matter of law before the alleged violations had occurred but which all parties believed to be in effect when the alleged violation had occurred, defendant was not guilty of violating a permit under this section.
State v. Villa
, 2003-NMCA-142, 134 N.M. 679, 82 P.3d 46,
aff'd
, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017.
Constitutionality.
— Provision in Section 74-6-10.2B NMSA 1978 which prohibits a person from knowingly allowing another person to violate this section was not unconstitutionally vague as applied where the defendant, who was hired as an environmental expert, knew the conditions of the disposal permit, and knew that waste dumped at the permitted site was not included in the permit, did not take any action to comply with the permit or to remedy the violations of which he had knowledge.
State v. Villa
, 2003-NMCA-142, 134 N.M. 679, 82 P.3d 46,
rev'd on other grounds
, 2004-NMSC-031, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017.
Resentencing on attempt counts
after convictions for violations of statute were overturned for insufficient evidence deprived defendant of notice and opportunity to defend, was inconsistent with New Mexico law regarding jury instructions and preservation of error, because attempt offenses were not charged and jury was not instructed on them.
State v. Villa
, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017.
Conviction of offense not presented to jury.
— Where a jury acquitted a defendant of 44 out of 52 charges of violating the Water Quality Act, and defendant appealed his convictions of the remaining eight felony counts, and the appellate court found insufficient evidence to sustain the eight convictions but remanded to the district court to enter judgment and resentencing for eight counts of attempt to commit the offenses of which the defendant was convicted, even though he was not charged with attempt and the jury was not instructed regarding the crime of attempt, a conviction of an offense not presented to the jury would deprive the defendant of notice and an opportunity to defend against that charge and would be inconsistent with New Mexico law regarding jury instructions and preservation of error.
State v. Villa
, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017.