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HOUSE BILL 140
57TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 2025
INTRODUCED BY
Christine Chandler
AN ACT
RELATING TO HAZARDOUS MATERIALS; ADDING A DEFINITION OF
"HAZARDOUS WASTE CONSTITUENT" TO THE HAZARDOUS WASTE ACT;
AMENDING AND ADDING THE IDENTIFICATION AND LISTING OF HAZARDOUS
WASTE CONSTITUENTS TO THE DUTIES AND POWERS OF THE
ENVIRONMENTAL IMPROVEMENT BOARD.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 74-4-3 NMSA 1978 (being Laws 1977,
Chapter 313, Section 3, as amended) is amended to read:
"74-4-3. DEFINITIONS.--As used in the Hazardous Waste
Act:
A. "above ground storage tank" means a single tank
or combination of tanks, including underground pipes connected
thereto, that are used to contain petroleum, including crude
oil or any fraction thereof that is liquid at standard
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conditions of temperature and pressure of sixty degrees
Fahrenheit and fourteen and seven-tenths pounds per square inch
absolute, and the volume of which is more than ninety percent
above the surface of the ground. "Above ground storage tank"
does not include any:
(1) farm, ranch or residential tank used for
storing motor fuel for noncommercial purposes;
(2) pipeline facility, including gathering
lines, that is regulated under Chapter 601 of Title 49 of the
United States Code or that is an intrastate pipeline facility
regulated under state laws as provided in Chapter 601 of Title
49 of the United States Code and that is determined by the
United States secretary of transportation to be connected to a
pipeline, or to be operated or intended to be capable of
operating at pipeline pressure or as an integral part of a
pipeline;
(3) surface impoundment, pit, pond or lagoon;
(4) storm water or wastewater collection
system;
(5) flow-through process tank;
(6) liquid trap, tank or associated gathering
lines or other storage methods or devices related to oil, gas
or mining exploration, production, transportation, refining,
processing or storage, or to oil field service industry
operations;
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(7) tank used for storing heating oil for
consumptive use on the premises where stored;
(8) pipes connected to any tank that is
described in Paragraphs (1) through (7) of this subsection; or
(9) tanks or related pipelines and facilities
owned or used by a refinery, natural gas processing plant or
pipeline company in the regular course of its refining,
processing or pipeline business;
B. "board" means the environmental improvement
board;
C. "corrective action" means an action taken in
accordance with rules of the board to investigate, minimize,
eliminate or clean up a release to protect the public health,
safety and welfare or the environment;
D. "director" or "secretary" means the secretary of
environment;
E. "disposal" means the discharge, deposit,
injection, dumping, spilling, leaking or placing of any solid
waste or hazardous waste into or on any land or water so that
the solid waste or hazardous waste or constituent thereof may
enter the environment or be emitted into the air or discharged
into any waters, including ground waters;
F. "division" or "department" means the department
of environment;
G. "federal agency" means any department, agency or
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other instrumentality of the federal government and any
independent agency or establishment of that government,
including any government corporation and the government
publishing office;
H. "generator" means any person producing hazardous
waste;
I. "hazardous agricultural waste" means hazardous
waste generated as part of the licensed activity by any person
licensed pursuant to the Pesticide Control Act or hazardous
waste designated as hazardous agricultural waste by the board,
but does not include animal excrement in connection with farm,
ranch or feedlot operations;
J. "hazardous substance incident" means any
emergency incident involving a chemical or chemicals, including
transportation wrecks, accidental spills or leaks, fires or
explosions, which incident creates the reasonable probability
of injury to human health or property;
K. "hazardous waste" means any solid waste or
combination of solid wastes that because of their quantity,
concentration or physical, chemical or infectious
characteristics may:
(1) cause or significantly contribute to an
increase in mortality or an increase in serious irreversible or
incapacitating reversible illness; or
(2) pose a substantial present or potential
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hazard to human health or the environment when improperly
treated, stored, transported, disposed of or otherwise managed.
"Hazardous waste" does not include any of the following, until
the board determines that they are subject to Subtitle C of the
federal Resource Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. 6901 et seq.:
(a) drilling fluids, produced waters and
other wastes associated with the exploration, development or
production of crude oil or natural gas or geothermal energy;
(b) fly ash waste;
(c) bottom ash waste;
(d) slag waste;
(e) flue gas emission control waste
generated primarily from the combustion of coal or other fossil
fuels;
(f) solid waste from the extraction,
beneficiation or processing of ores and minerals, including
phosphate rock and overburden from the mining of uranium ore;
or
(g) cement kiln dust waste;
L. "hazardous waste constituent" means a chemical
or substance that meets the definition of a hazardous waste
pursuant to Subsection K of this section and has been
identified by the board as being subject to corrective action
requirements under the Hazardous Waste Act;
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[L.] M. "manifest" means the form used for
identifying the quantity, composition, origin, routing and
destination of hazardous waste during transportation from point
of generation to point of disposal, treatment or storage;
[M.] N. "person" means an individual, trust, firm,
joint stock company, federal agency, corporation, including a
government corporation, partnership, association, state,
municipality, commission, political subdivision of a state or
any interstate body;
[N.] O. "regulated substance" means:
(1) a substance defined in Section 101(14) of
the federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, but not including a substance
regulated as a hazardous waste under Subtitle C of the federal
Resource Conservation and Recovery Act of 1976, as amended; and
(2) petroleum, including crude oil or any
fraction thereof that is liquid at standard conditions of
temperature and pressure of sixty degrees Fahrenheit and
fourteen and seven-tenths pounds per square inch absolute;
[O.] P. "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, but
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does not include solid or dissolved materials 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, as amended, 86 Stat. 880, or source, special
nuclear or byproduct material as defined by the federal Atomic
Energy Act of 1954, as amended, 68 Stat. 923;
[P.] Q. "storage" means the containment of
hazardous waste, either on a temporary basis or for a period of
years, in such a manner as not to constitute disposal of such
hazardous waste;
[Q.] R. "storage tank" means an above ground
storage tank or an underground storage tank;
[R.] S. "tank installer" means any individual who
installs or repairs a storage tank;
[S.] T. "tank tester" means any individual who
tests storage tanks;
[T.] U. "transporter" means a person engaged in the
movement of hazardous waste, not including movement at the site
of generation, disposal, treatment or storage;
[U.] V. "treatment" means any method, technique or
process, including neutralization, designed to change the
physical, chemical or biological character or composition of a
hazardous waste so as to neutralize the waste or so as to
render the waste nonhazardous, safer for transport, amenable to
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recovery, amenable to storage or reduced in volume.
"Treatment" includes any activity or processing designed to
change the physical form or chemical composition of hazardous
waste so as to render it nonhazardous;
[V.] W. "underground storage tank" means a single
tank or a combination of tanks, including underground pipes
connected thereto, that is used to contain an accumulation of
regulated substances and the volume of which, including the
volume of the underground pipes connected thereto, is ten
percent or more beneath the surface of the ground.
"Underground storage tank" does not include any:
(1) farm, ranch or residential tank of one
thousand one hundred gallons or less capacity used for storing
motor fuel for noncommercial purposes;
(2) septic tank;
(3) pipeline facility, including gathering
lines, that is regulated under Chapter 601 of Title 49 of the
United States Code or that is an intrastate pipeline facility
regulated under state laws as provided in Chapter 601 of Title
49 of the United States Code and that is determined by the
United States secretary of transportation to be connected to a
pipeline, or to be operated or intended to be capable of
operating at pipeline pressure or as an integral part of a
pipeline;
(4) surface impoundment, pit, pond or lagoon;
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(5) storm water or wastewater collection
system;
(6) flow-through process tank;
(7) liquid trap, tank or associated gathering
lines directly related to oil or gas production and gathering
operations;
(8) storage tank situated in an underground
area, such as a basement, cellar, mineworking drift, shaft or
tunnel, if the storage tank is situated upon or above the
surface of the undesignated floor;
(9) tank used for storing heating oil for
consumptive use on the premises where stored;
(10) tank exempted by rule of the board after
finding that the type of tank is adequately regulated under
another federal or state law; or
(11) pipes connected to any tank that is
described in Paragraphs (1) through (10) of this subsection;
and
[W.] X. "used oil" means any oil that has been
refined from crude oil, or any synthetic oil, that has been
used and as a result of such use is contaminated by physical or
chemical impurities."
SECTION 2. Section 74-4-4 NMSA 1978 (being Laws 1977,
Chapter 313, Section 4, as amended) is amended to read:
"74-4-4. DUTIES AND POWERS OF THE BOARD.--
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A. The board shall adopt rules for the management
of hazardous waste and hazardous waste constituents , as may be
necessary to protect public health and the environment, that
are equivalent to and at least as stringent as federal
regulations adopted by the federal environmental protection
agency pursuant to the federal Resource Conservation and
Recovery Act of 1976, as amended:
(1) for the identification and listing of
hazardous wastes and hazardous waste constituents , taking into
account toxicity, persistence and degradability, potential for
accumulation in tissue and other related factors, including
flammability, corrosiveness and other hazardous
characteristics; [provided that, except as authorized by
Sections 74-4-3.3 and 74-8-2 NMSA 1978, the board shall not
identify or list any solid waste or combination of solid wastes
as a hazardous waste that has not been listed and designated as
a hazardous waste by the federal environmental protection
agency pursuant to the federal Resource Conservation and
Recovery Act of 1976, as amended ]
(2) establishing standards applicable to
generators identified or listed under this subsection,
including requirements for:
(a) furnishing information on the
location and description of the generator's facility and on the
production or energy recovery activity occurring at that
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facility;
(b) recordkeeping practices that
accurately identify the quantities of hazardous waste
generated, the constituents of the waste that are significant
in quantity or in potential harm to human health or the
environment and the disposition of the waste;
(c) labeling practices for any
containers used for the storage, transport or disposal of the
hazardous waste that will identify accurately the waste;
(d) use of safe containers tested for
safe storage and transportation of the hazardous waste;
(e) furnishing the information on the
general chemical composition of the hazardous waste to persons
transporting, treating, storing or disposing of the waste;
(f) implementation of programs to reduce
the volume or quantity and toxicity of the hazardous waste
generated;
(g) submission of reports to the
secretary at such times as the secretary deems necessary,
setting out the quantities of hazardous waste identified or
listed pursuant to the Hazardous Waste Act that the generator
has generated during a particular time period and the
disposition of all hazardous waste reported, the efforts
undertaken during a particular time period to reduce the volume
and toxicity of waste generated and the changes in volume and
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toxicity of waste actually achieved during a particular time
period in comparison with previous time periods; and
(h) the use of a manifest system and any
other reasonable means necessary to ensure that all hazardous
waste generated is designated for treatment, storage or
disposal in, and arrives at, treatment, storage or disposal
facilities, other than facilities on the premises where the
waste is generated, for which a permit has been issued pursuant
to the Hazardous Waste Act; that the generator of hazardous
waste has a program in place to reduce the volume or quality
and toxicity of waste to the degree determined by the generator
to be economically practicable; and that the proposed method of
treatment, storage or disposal is that practicable method
currently available to the generator that minimizes the present
and future threat to human health and the environment;
(3) establishing standards applicable to
transporters of hazardous waste identified or listed under this
subsection or of fuel produced from any such hazardous waste or
of fuel from such waste and any other material, as may be
necessary to protect human health and the environment,
including requirements for:
(a) recordkeeping concerning the
hazardous waste transported and its source and delivery points;
(b) transportation of the hazardous
waste only if properly labeled;
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(c) compliance with the manifest system
referred to in Subparagraph (h) of Paragraph (2) of this
subsection; and
(d) transportation of all the hazardous
waste only to the hazardous waste treatment, storage or
disposal facility that the shipper designates on the manifest
form to be a facility holding a permit issued pursuant to the
Hazardous Waste Act or the federal Resource Conservation and
Recovery Act of 1976, as amended;
(4) establishing standards applicable to
distributors or marketers of any fuel produced from hazardous
waste, or any fuel that contains hazardous waste, for:
(a) furnishing the information stating
the location and general description of the facility; and
(b) furnishing the information
describing the production or energy recovery activity carried
out at the facility;
(5) establishing performance standards as may
be necessary to protect human health and the environment
applicable to owners and operators of facilities for the
treatment, storage or disposal of hazardous waste identified or
listed under this section, distinguishing, where appropriate,
between new facilities and facilities in existence on the date
of promulgation, including requirements for:
(a) maintaining the records of all
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hazardous waste identified or listed under this subsection that
is treated, stored or disposed of, as the case may be, and the
manner in which the waste was treated, stored or disposed of;
(b) satisfactory reporting, monitoring,
inspection and compliance with the manifest system referred to
in Subparagraph (h) of Paragraph (2) of this subsection;
(c) treatment, storage or disposal of
all such waste and any liquid that is not a hazardous waste,
except with respect to underground injection control into deep
injection wells, received by the facility pursuant to such
operating methods, techniques and practices as may be
satisfactory to the secretary;
(d) location, design and construction of
hazardous waste treatment, disposal or storage facilities;
(e) contingency plans for effective
action to minimize unanticipated damage from any treatment,
storage or disposal of any hazardous waste;
(f) maintenance and operation of the
facilities and requiring any additional qualifications as to
ownership, continuity of operation, training for personnel and
financial responsibility, including financial responsibility
for corrective action, as may be necessary or desirable;
(g) compliance with the requirements of
Paragraph (6) of this subsection respecting permits for
treatment, storage or disposal;
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(h) the taking of corrective action for
all releases of hazardous waste or constituents from a solid
waste management unit at a treatment, storage or disposal
facility, regardless of the time at which waste was placed in
the unit; and
(i) the taking of corrective action
beyond a facility's boundaries where necessary to protect human
health and the environment unless the owner or operator of that
facility demonstrates to the satisfaction of the secretary
that, despite the owner's or operator's best efforts, the owner
or operator was unable to obtain the necessary permission to
undertake such action. Rules adopted and promulgated under
this subparagraph shall take effect immediately and shall apply
to all facilities operating under permits issued under
Paragraph (6) of this subsection and to all landfills, surface
impoundments and waste pile units, including any new units,
replacements of existing units or lateral expansions of
existing units, that receive hazardous waste after July 26,
1982. No private entity shall be precluded by reason of
criteria established under Subparagraph (f) of this paragraph
from the ownership or operation of facilities providing
hazardous waste treatment, storage or disposal services where
the entity can provide assurance of financial responsibility
and continuity of operation consistent with the degree and
duration of risks associated with the treatment, storage or
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disposal of specified hazardous waste;
(6) requiring each person owning or operating,
or both, an existing facility or planning to construct a new
facility for the treatment, storage or disposal of hazardous
waste identified or listed under this subsection to have a
permit issued pursuant to requirements established by the
board;
(7) establishing procedures for the issuance,
suspension, revocation and modification of permits issued under
Paragraph (6) of this subsection, which rules shall provide for
public notice, public comment and an opportunity for a hearing
prior to the issuance, suspension, revocation or major
modification of any permit unless otherwise provided in the
Hazardous Waste Act;
(8) defining major and minor modifications;
and
(9) establishing procedures for the inspection
of facilities for the treatment, storage and disposal of
hazardous waste that govern the minimum frequency and manner of
the inspections, the manner in which records of the inspections
shall be maintained and the manner in which reports of the
inspections shall be filed; provided, however, that inspections
of permitted facilities shall occur no less often than every
two years.
B. The board shall adopt rules:
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(1) concerning hazardous substance incidents;
and
(2) requiring notification to the department
of any hazardous substance incidents.
C. The board shall adopt rules concerning storage
tanks as may be necessary to protect public health and the
environment and that, in the case of underground storage tanks,
are equivalent to and at least as stringent as federal
regulations adopted by the federal environmental protection
agency pursuant to the federal Resource Conservation and
Recovery Act of 1976, as amended.
D. The board shall adopt rules concerning storage
tanks that implement the federal Energy Policy Act of 2005,
Pub. L. 109-58, as amended, and that are equivalent to and at
least as stringent as the Energy Policy Act and its grant
guidelines and regulations.
E. Rules adopted pursuant to this section shall
include:
(1) standards for the installation, operation,
maintenance, repair and replacement of storage tanks;
(2) requirements for financial responsibility;
(3) standards for inventory control;
(4) standards for the detection of leaks from
and the integrity-testing and monitoring of storage tanks;
(5) standards for the closure and dismantling
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of storage tanks;
(6) requirements for recordkeeping;
(7) requirements for the reporting,
containment and remediation of all leaks from any storage
tanks; and
(8) criteria and procedures for classifying a
storage tank facility as ineligible, and reclassifying a
storage tank facility as eligible, for the delivery, deposit,
acceptance or sale of petroleum products.
F. The criteria and procedures adopted by the board
pursuant to this section shall require the department to
classify a storage tank facility as ineligible for delivery,
deposit, acceptance or sale of petroleum products if the
storage tank facility has not installed required equipment for
spill prevention, overfill protection, leak detection or
corrosion protection, including required corrosion protection
equipment for a buried metal flexible connector.
G. The criteria and procedures adopted by the board
pursuant to this section may allow the department to classify a
storage tank facility as ineligible for delivery, deposit,
acceptance or sale of petroleum products when the owner or
operator has failed to comply with a written warning within a
reasonable period of time and the warning concerns:
(1) improper operation or maintenance of
required equipment for spill prevention, overfill protection,
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leak detection or corrosion protection;
(2) failure to maintain required financial
responsibility for corrective action; or
(3) operation of the storage tank facility in
a manner that creates an imminent threat to the public health
and the environment.
H. Rules adopted by the board pursuant to this
section shall defer classifying a storage tank facility as
ineligible for delivery, deposit, acceptance or sale of
petroleum products if the ineligible classification would
jeopardize the availability of, or access to, motor fuel in any
rural and remote areas.
I. Rules adopted by the board pursuant to this
section shall allow the department to authorize delivery or
deposit of petroleum products to:
(1) an emergency generator tank that is
otherwise ineligible for delivery or deposit if a commercial
power failure or other declared state of emergency exists and
the emergency generator tank provides power supply, stores
petroleum and is used solely in connection with an emergency
system, legally required standby system or optional standby
system; or
(2) a storage tank facility that is otherwise
ineligible for delivery or deposit if the delivery or deposit
is necessary to test or calibrate a tank.
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J. The board shall adopt rules concerning the
management of used oil that are equivalent to and at least as
stringent as federal regulations adopted by the federal
environmental protection agency pursuant to the federal
Resource Conservation and Recovery Act of 1976, as amended.
K. In the event the board wishes to adopt rules
that are identical with regulations adopted by an agency of the
federal government, the board, after notice and hearing, may
adopt such rules by reference to the federal regulations
without setting forth the provisions of the federal
regulations.
L. Before the board adopts a rule for the
management of hazardous waste, concerning storage tanks or
concerning used oil, that is more stringent than the federal
regulations, the board shall make a determination, based on
substantial evidence and after notice and public hearing, that
the proposed rule will be more protective of public health and
the environment."
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