HENRC/HB 140/a
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AN ACT
RELATING TO HAZARDOUS MATERIALS; AMENDING THE DEFINITION OF
"HAZARDOUS WASTE"; AUTHORIZING THE ENVIRONMENTAL IMPROVEMENT
BOARD TO ADOPT RULES FOR PER- AND POLYFLUOROALKYL SUBSTANCES
THAT ARE DESIGNATED HAZARDOUS WASTE.
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 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 HENRC/HB 140/a
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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;
(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; HENRC/HB 140/a
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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 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 HENRC/HB 140/a
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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":
(1) means any solid waste or combination of
solid wastes that, because of quantity, concentration or
physical, chemical or infectious characteristics, may:
(a) cause or significantly contribute
to an increase in mortality or an increase in serious
irreversible or incapacitating reversible illness; or
(b) pose a substantial present or
potential hazard to human health or the environment when
improperly treated, stored, transported, disposed of or
otherwise managed;
(2) includes:
(a) discarded aqueous film-forming foam
containing intentionally added per- or polyfluoroalkyl
substances; and
(b) all solid waste or combination of HENRC/HB 140/a
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solid wastes listed and designated as hazardous waste by the
federal environmental protection agency pursuant to the
federal Resource Conservation and Recovery Act of 1976;
provided that any solid waste or combination of solid wastes
designated as hazardous by the federal environmental
protection agency pursuant to the federal Resource
Conservation and Recovery Act of 1976 on July 1, 2025 and
subsequently removed by the federal environmental protection
agency shall be considered hazardous waste; and
(3) does not include the following
substances, until the board determines that the substance is
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, 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; HENRC/HB 140/a
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(g) cement kiln dust waste; or
(h) solid wastes generated by the
growing and harvesting of agricultural crops or the raising
of animals, including animal manures, when those solid wastes
are returned to the soils as fertilizer;
L. "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. "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. "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; HENRC/HB 140/a
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O. "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
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. "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. "storage tank" means an above ground storage
tank or an underground storage tank;
R. "tank installer" means any individual who
installs or repairs a storage tank;
S. "tank tester" means any individual who tests
storage tanks;
T. "transporter" means a person engaged in the
movement of hazardous waste, not including movement at the HENRC/HB 140/a
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site of generation, disposal, treatment or storage;
U. "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 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. "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 HENRC/HB 140/a
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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;
(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 HENRC/HB 140/a
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W. "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.--
A. The board shall adopt rules for the management
of hazardous waste, 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, 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 HENRC/HB 140/a
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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
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; HENRC/HB 140/a
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(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 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; HENRC/HB 140/a
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(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;
(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 HENRC/HB 140/a
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(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
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; HENRC/HB 140/a
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(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;
(h) the taking of corrective action for
all releases of hazardous waste 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 HENRC/HB 140/a
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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 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 HENRC/HB 140/a
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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:
(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. HENRC/HB 140/a
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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 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, HENRC/HB 140/a
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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,
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 HENRC/HB 140/a
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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.
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 HENRC/HB 140/a
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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.
M. The board may adopt rules pertaining to aqueous
film-forming foam containing intentionally added per- or
polyfluoroalkyl substances pursuant to the Hazardous Waste
Act."