2021 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 6 - Water Quality
Section 74-6-5 - Permits; certification; appeals to commission.
A. By regulation, the commission may require persons to obtain from a constituent agency designated by the commission a permit for the discharge of any water contaminant or for the disposal or reuse of septage or sludge.
B. The commission shall adopt regulations establishing procedures for certifying federal water quality permits.
C. Prior to the issuance of a permit, the constituent agency may require the submission of plans, specifications and other relevant information that it deems necessary.
D. The commission shall by regulation set the dates upon which applications for permits shall be filed and designate the time periods within which the constituent agency shall, after the filing of an administratively complete application for a permit, either grant the permit, grant the permit subject to conditions or deny the permit. The constituent agency has the burden of showing that each condition is reasonable and necessary to ensure compliance with the Water Quality Act and applicable regulations, considering site-specific conditions. After regulations have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the regulations. Additional conditions on a final permit may be imposed if the applicant is provided with an opportunity to review and provide comments in writing on the draft permit conditions and to receive a written explanation of the reasons for the conditions from the constituent agency.
E. The constituent agency shall deny any application for a permit or deny the certification of a federal water quality permit if:
(1) the effluent would not meet applicable state or federal effluent regulations, standards of performance or limitations;
(2) any provision of the Water Quality Act would be violated;
(3) the discharge would cause or contribute to water contaminant levels in excess of any state or federal standard. Determination of the discharge's effect on ground water shall be measured at any place of withdrawal of water for present or reasonably foreseeable future use. Determination of the discharge's effect on surface waters shall be measured at the point of discharge; or
(4) the applicant has, within the ten years immediately preceding the date of submission of the permit application:
(a) knowingly misrepresented a material fact in an application for a permit;
(b) refused or failed to disclose any information required under the Water Quality Act;
(c) been convicted of a felony or other crime involving moral turpitude;
(d) been convicted of a felony in any court for any crime defined by state or federal law as being a restraint of trade, price-fixing, bribery or fraud;
(e) exhibited a history of willful disregard for environmental laws of any state or the United States; or
(f) had an environmental permit revoked or permanently suspended for cause under any environmental laws of any state or the United States.
F. The commission shall by regulation develop procedures that ensure that the public, affected governmental agencies and any other state whose water may be affected shall receive notice of each application for issuance, renewal or modification of a permit. Public notice shall include:
(1) for issuance or modification of a permit:
(a) notice by mail to adjacent and nearby landowners; local, state and federal governments; land grant organizations; ditch associations; and Indian nations, tribes or pueblos;
(b) posting at a place conspicuous to the public and near the discharge or proposed discharge site; and
(c) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge or proposed discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections; and
(2) for issuance of renewals of permits:
(a) notice by mail to the interested public, municipalities, counties, land grant organizations, ditch associations and Indian nations, tribes or pueblos; and
(b) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections.
G. No ruling shall be made on any application for a permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit evidence, data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The hearing shall be recorded. Any person submitting evidence, data, views or arguments shall be subject to examination at the hearing.
H. The commission may adopt regulations for the operation and maintenance of the permitted facility, including requirements, as may be necessary or desirable, that relate to continuity of operation, personnel training and financial responsibility, including financial responsibility for corrective action.
I. Permits shall be issued for fixed terms not to exceed five years, except that for new discharges, the term of the permit shall commence on the date the discharge begins, but in no event shall the term of the permit exceed seven years from the date the permit was issued.
J. By regulation, the commission may impose reasonable conditions upon permits requiring permittees to:
(1) install, use and maintain effluent monitoring devices;
(2) sample effluents and receiving waters for any known or suspected water contaminants in accordance with methods and at locations and intervals as may be prescribed by the commission;
(3) establish and maintain records of the nature and amounts of effluents and the performance of effluent control devices;
(4) provide any other information relating to the discharge or direct or indirect release of water contaminants; and
(5) notify a constituent agency of the introduction of new water contaminants from a new source and of a substantial change in volume or character of water contaminants being introduced from sources in existence at the time of the issuance of the permit.
K. The commission shall provide by regulation a schedule of fees for permits, not exceeding the estimated cost of investigation and issuance, modification and renewal of permits. Fees collected pursuant to this section shall be deposited in the water quality management fund.
L. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Water Quality Act, any applicable regulations or water quality standards of the commission or any applicable federal laws, regulations or standards.
M. A permit may be terminated or modified by the constituent agency that issued the permit prior to its date of expiration for any of the following causes:
(1) violation of any condition of the permit;
(2) obtaining the permit by misrepresentation or failure to disclose fully all relevant facts;
(3) violation of any provisions of the Water Quality Act or any applicable regulations, standard of performance or water quality standards;
(4) violation of any applicable state or federal effluent regulations or limitations; or
(5) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.
N. If the constituent agency denies, terminates or modifies a permit or grants a permit subject to condition, the constituent agency shall notify the applicant or permittee by certified mail of the action taken and the reasons. Notice shall also be given by mail to persons who participated in the permitting action.
O. A person who participated in a permitting action before a constituent agency or a person affected by a certification of a federal permit and who is adversely affected by such permitting action or certification may file a petition for review before the commission. Unless a timely petition for review is made, the decision of the constituent agency shall be final and not subject to judicial review. The petition shall:
(1) be made in writing to the commission within thirty days from the date notice is given of the constituent agency's action;
(2) include a statement of the issues to be raised and the relief sought; and
(3) be provided to all other persons submitting evidence, data, views or arguments in the proceeding before the constituent agency.
P. If a timely petition for review is made, the commission shall consider the petition within ninety days after receipt of the petition. The commission shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the review. If the petitioner is not the applicant or permittee, the applicant or permittee shall be a party to the proceeding. The commission shall ensure that the public receives notice of the date, time and place of the review.
Q. The commission shall review the record compiled before the constituent agency, including the transcript of any public hearing held on the application or draft permit, and shall allow any party to submit arguments. The commission may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the commission. The commission shall consider and weigh only the evidence contained in the record before the constituent agency and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the constituent agency. Based on the review of the evidence, the arguments of the parties and recommendations of the hearing officer, the commission shall sustain, modify or reverse the action of the constituent agency. The commission shall enter ultimate findings of fact and conclusions of law and keep a record of the review.
R. Prior to the date set for review, if a party shows to the satisfaction of the commission that there was no reasonable opportunity to submit comment or evidence on an issue being challenged, the commission shall order that additional comment or evidence be taken by the constituent agency. Based on the additional evidence, the constituent agency may revise the decision and shall promptly file with the commission the additional evidence received and action taken. The commission shall consider the additional evidence within ninety days after receipt of the additional evidence and shall notify the petitioner and the applicant or permittee, if other than the petitioner, of the date, time and place of the review.
S. The commission shall notify the petitioner and all other participants in the review proceeding of the action taken by the commission and the reasons for that action.
History: 1953 Comp., § 75-39-4.1, enacted by Laws 1973, ch. 326, § 4; 1985, ch. 157, § 1; 1989, ch. 248, § 1; 1993, ch. 100, § 3; 1993, ch. 291, § 5; 1999, ch. 21, § 1; 2005, ch. 195, § 1; 2009, ch. 194, § 2.
ANNOTATIONSThe 2009 amendment, effective June 19, 2009, in Subsection D, added the second, third and fourth sentences.
The 2005 amendment, effective June 17, 2005, added Subsection F(1) through (2) the public notice required for issuance or modification of a permit and for issuance of renewals of permits; provided in Subsection G that the hearing shall be recorded and that any person who submits evidence, data, views or arguments shall be subject to examination at the hearing; provided in Subsection N that notice shall also be given by mail to persons who participated in the permitting action; deletes the former provision to Subsection O that the petition shall be made in writing to the commission within thirty days from the date notice is given to the agency's action, provides that if a petition for review is not timely, the decision of the agency is not subject to judicial review; added Subsection O(1) through (3) to provide requirement relating to the petition; deleted provisions in former Subsection O, which required the commission to hold a hearing and which related to the conduct of the hearing; deleted former Subsection P, which related to the recording of the hearing before the commission; provided in Subsection P that the commission shall consider the petition and that if the petitioner is not a the applicant or permittee, the applicant or permittee shall be a party to the action; added Subsection Q, which provides for a record review by the commission or a hearing officer; added Subsection R which provides the commission may order that the agency take additional comment or evidence for review by the commission; and, added Subsection S to require the commission to give notice of the action taken by the commission and the reasons for that action.
The 1999 amendment, effective June 18, 1999, in Subsection N substituted "review" for "hearing" in two places and substituted "petition" for "request" in the last sentence, substituted "review" for "hearing" in the first sentence of Subsection O, and made minor stylistic changes.
The 1993 amendment, effective March 31, 1993, in Subsection H, deleted the last sentence which read "Effective July 1, 1992, all fees collected pursuant to this section shall be deposited in the general fund".
Permit conditions. — The failure to express a limitation on the conditions which may be imposed indicates the legislature's intent that NMED should retain sufficient discretion to carry out its mission and is not limited by the conditions listed in Section 74-6-5J NMSA 1978. In adopting Section 74-6-5J the legislature wanted to emphasize the importance of monitoring, sampling, and reporting by allowing the commission to impose these conditions through regulation. When interpreted in harmony with Sections 74-6-4D and 74-6-5D NMSA 1978, Section 74-6-5J NMSA 1978 is a grant of authority, not a limitation. Phelps Dodge Tyrone, Inc. v. N.M. Water Quality Control Comm'n, 2006-NMCA-115, 140 N.M. 464, 143 P.3d 502, cert. denied, 2006-NMCERT-009, 140 N.M. 542, 144 P.3d 101.
Date of submission. — The date of submission of an application for a discharge permit and discharge plan to the environment department occurs when the constituent agency has received all of the information that it needs to consider the application, including all information that an applicant must include in the discharge plan. The date of submission of an application may be the date that an applicant initially files an application and discharge plan with the environment department or a later date when the applicant files supplemental information that the applicant failed to provide in the initial filing and that the constituent agency determines is necessary to consider the application. Summers v. N.M. Water Quality Control Comm'n, 2011-NMCA-097, 150 N.M. 694, 265 P.3d 745.
Mandatory denial of a discharge permit is required if an application for a permit contains a material misrepresentation of fact when the application is submitted. A discharge permit must be denied in cases where a misrepresentation is made in an initial application and no further information is required by the constituent agency and in cases in which the initial application does not contain any misrepresentation, but supplemental information requested by the constituent agency contains a misrepresentation. Summers v. N.M. Water Quality Control Comm'n, 2011-NMCA-097, 150 N.M. 694, 265 P.3d 745.
Denial of discharge permits for misrepresentations applies to current and prior applications for permits. — The requirement that the constituent agency deny a discharge permit if the applicant has, within the ten years immediately preceding the date of submission of the permit application, knowingly misrepresented a material fact in the application applies to both current and prior applications for discharge permits. Summers v. N.M. Water Quality Control Comm'n, 2011-NMCA-097, 150 N.M. 694, 265 P.3d 745.
Applicant knowingly misrepresented a material fact. — Where the applicant for a septic waste discharge permit initially provided geological information in the application about a well that was 1,100 feet from the discharge site; environment department regulations required applicants to provide geological information about the proposed discharge site if available; the applicant failed to provide in the application geological information about a well that the applicant had drilled that was 100 feet from the discharge site, concealed facts about the date and circumstances surrounding how the applicant had drilled the well; and submitted a fabricated well log for the applicant's well, the applicant knowingly made misrepresentations of material facts. Summers v. N.M. Water Quality Control Comm'n, 2011-NMCA-097, 150 N.M. 694, 265 P.3d 745.
Misrepresentation occurred within the ten years preceding submission of permit application. — Where the applicant for a septic waste discharge permit filed an application on August 19, 2004; the application contained geological information about a well that was 1,100 feet from the discharge site; environment department regulations required applicants of provide geological information about the proposed discharge site if available; the applicant made a misrepresentation of material fact on August 19, 2004 when the applicant failed to include in the application geological information about a well that the applicant had drilled that was 100 feet from the discharge site and impliedly represented that information about the more distant well was the only relevant information available; and the application for the discharge permit was submitted on July 28, 2006 when the applicant provided additional geological information that the ground water bureau had requested to fully evaluate the application, the misrepresentation was made within ten years immediately preceding the date of submission of the permit application and required denial of the discharge permit. Summers v. N.M. Water Quality Control Comm'n, 2011-NMCA-097, 150 N.M. 694, 265 P.3d 745.
Regulations distinguished. — There is no reason to disassociate the commission's general regulations relating to motions from those relating to formal and informal appeal petitions and appeal hearing proceedings. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2005-NMCA-139, 138 N.M. 625, 124 P.3d 1164, cert. denied, 2005-NMCERT-009, 138 N.M. 439, 120 P.3d 1182.
Regulation requirements for a public hearing. — The regulation promulgated to effectuate 74-6-5(G) NMSA 1978, providing for the opportunity for a public hearing, requires that a party first submit a request in writing, setting forth the reasons a hearing should be held, and a determination by the secretary of the New Mexico environment department that there is a substantial public interest in the matters that are the subject of the permit application. Communities for Clean Water v. N.M. Water Quality Control Comm'n, 2018-NMCA-024.
Where appellant, an organization whose mission is to ensure that community waters which receive adverse impacts from Los Alamos national labs are kept safe for drinking and other uses, appealed the water quality control commission's (WQCC) final order sustaining the decision of the New Mexico environment department (NMED) to deny appellant's request for a public hearing on a water discharge permit application, the WQCC's decision sustaining NMED's denial of appellant's request for public hearing was arbitrary, capricious and not supported by substantial evidence, because although the plain language of 74-6-5(G) NMSA 1978 indicates that the legislature intended to confer limited discretion on the secretary of NMED to determine whether a public hearing should be held on a permit application under the Water Quality Act, in this case the WQCC lacked substantial evidence to support its decision to sustain NMED's denial of appellant's request for a public hearing when the WQCC failed to include an evaluation of factors relevant to a substantial public interest. Communities for Clean Water v. N.M. Water Quality Control Comm'n, 2018-NMCA-024.
Commission's requirement of information to prevent water pollution within statutory mandate. — Where the objective of this article is to abate and prevent water pollution, it is not "clearly incorrect" for the commission to require a discharger of toxic pollutants to provide a site and method for flow measurement and to provide any pertinent information relating to the discharge of water contaminants in order to demonstrate to the commission that the plans of the discharger will not result in a violation of the standards and regulations; these requirements are well within the statutory mandate. Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, 93 N.M. 546, 603 P.2d 285.
Adoption of the Copper Rule was a permissible exercise of the water quality control commission's authority. — Where petitioners appealed the water quality control commission's (commission) decision to adopt the Copper Rule, a rule which was designed to control and contain discharges of water contaminants specific to copper mine facilities and their operations to prevent water pollution so that ground water meets state standards, claiming that the Copper Rule is inconsistent with and violates the Water Quality Act (WQA), the commission did not abuse its discretion in adopting the Copper Rule, because the adoption of the rule is a permissible exercise of the commission's statutory authority, and the Copper Rule advances the core purposes of 74-6-5(E)(3) NMSA 1978 by protecting groundwater outside the area of open pit hydrologic containment and monitoring wells. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2018-NMSC-025, aff'g 2015-NMCA-076, 355 P.3d 36.
Determining locations of places of withdrawal left to the discretion of the water quality control commission. — Determining the locations of places of withdrawal under Subsection E(3) of this section is left to the discretion of the water quality control commission (commission), and where the commission created a set of concrete regulations via the rule-making process that specifically protect ground water underlying mine facilities so that areas within a mine facility may become places of withdrawal, the commission is in compliance with the Water Quality Act, and the commission's decision not to include, in the regulations, factors or policies to be used for determining places of withdrawal did not violate the Water Quality Act. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2015-NMCA-076, cert. granted, 2015-NMCERT-007, cert. granted, 2015-NMCERT-007, and cert. granted, 2015-NMCERT-007.
In determining whether administrative interpretation is "clearly incorrect," the authority granted to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent or policy. Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, 93 N.M. 546, 603 P.2d 285.
Commission may delegate authority to administer regulations. — Where the commission gave the environmental improvement division [now department of environment] the authority to administer certain regulations, there was no unlawful delegation of authority. Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm'n, 1982-NMCA-015, 98 N.M. 240, 647 P.2d 873.
Discharge of a toxic pollutant in violation of a discharge plan is a criminal act. Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm'n, 1982-NMCA-015, 98 N.M. 240, 647 P.2d 873.
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).
For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983).
For note, "New Mexico Water Pollution Regulations and Standards Upheld," see 19 Nat. Resources J. 693 (1979).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control §§ 133 to 136.
Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute, 81 A.L.R.3d 1258.
39A C.J.S. Health and Environment §§ 134, 145, 154.
