H 91 NATURAL RESOURCES TRUSTEE CHANGES

Rep Joanne Ferrary

Actions: HPREF [2] HENRC/HJC-HENRC

Scheduled: Not Scheduled

 House Bill 91 (HB 91) authorizes the natural resources trustee to bring suit for damages caused by release of an injurious substance pursuant to the Natural Resources Trustee Act. It provides for the adoption of rules for the assessment and collection of fines related to the release of petroleum-based injurious substances with limitations.  HB 91 amends the Natural Resources Trustee Fund and allows the natural resources trustee to join a civil action pursuant to the Water Quality Act, the Air Quality Control Act and the Hazardous Waste Act. It amends and enacts sections of the NMSA 1978 and makes an appropriation. 
1/23/23
The House Energy, Environment and Natural Resources Committee introduced a committee substitute for HB 91 (CS/HB 91 HENRC). It authorizing the Natural Resources Trustee to bring suit for damages caused by release of an injurious substance pursuant to the Natural Resources Trustee Act. It provides limitations and amends the Natural Resources Trustee Fund. It amends and enacts sections of the NMSA 1978 and makes an appropriation.

 

 House Bill 91 (HB 91) amends the Air Quality Control Act, the Hazardous Waste Act and the Water Quality Control Act (Sections 74-2-12, 74-4-10, 74-6-10 NMSA 1978 respectively) to allow the natural resource trustee (Trustee) the right to join a civil action for the violation of each of these act’s provisions and makes technical changes in each of these acts.
HB 91 adds a findings section to the Natural Resources Trustee Act (NRTA) that include the right to a healthy environment and the threat that release of injurious substances into the environment causes. It contains a definition section with five definitions including an extensive definition of injurious substance.

HB 91 authorizes the Trustee to bring suit for damages caused by release of an injurious substance including for past releases that have a continuing and present injury to natural resources pursuant to the NRTA. It directs the Trustee to adopt and enforce rules for the assessment and collection of fines related to the release of petroleum-based injurious substances but allows a person who is or may be affected by the rule to file a direct appeal to the NM Court of Appeals. HB 91 establishes a process for a cooperative assessment of the nature and extent of damages before the Trustee institutes a lawsuit and delineates those who will be responsible and the types of damages for these releases available to the state (damages, interim losses, residual losses and reasonable cost of assessment of injury). It imposes a five-year statute of limitations for the Trustee to bring a claim and establishes an assessment costs subaccount in the Natural Resources Trustee Fund that are receives these fines. It specifies that this fund’s monies may be spent only in that area which suffered injury, destruction or loss of a natural resource with some exceptions and deletes the definition of assessment costs from this section (Section 75-7-5 NMSA 1978).
 

  Trustee cannot join lawsuits brought for violation of the Air Quality Control Act, the Water Quality Control Act or the Hazardous Waste Act. The Trustee may not sue for past releases even if the damages are ongoing. 

 The House Energy, Environment and Natural Resources Committee introduced a committee substitute for HB 91 (CS/HB 91 HENRC) that provides seven definitions for the Natural Resources Trustee Act (NRTA) including assessment costs; facility; injurious substance; natural resources; release; restoration; and services. It modifies Section 75-7-2 NMSA 1978 so that the Natural Resources Trustee (Trustee) will be subject to the NRTA and other applicable state law. CS/HB 91 HENRC authorizes the Trustee to bring suit for damages caused by release of an injurious substance including for past releases that have a continuing and present injury to natural resources (Section 75-7-3 NMSA 1978). It establishes a process by which the Trustee through the office of attorney general (AG) will bring a suit for damages including certification that efforts have not or will not resolve the claim. CS/HB 91 HENRC requires the Trustee to make reasonable efforts to conduct a cooperative assessment with the responsible parties which will include means of resolution before filing a lawsuit. It establishes venue in the district court in Santa Fe County or in the district court in the county in which the damages occurred. CS/HB 91 HENRC names those who would be liable for an intentional or negligent release of injurious substances even within the facility and provides for several types of damages that are recoverable even if there are prospective or ongoing remediation efforts. It protects certain state and other governmental actors from liability under this section. It establishes a five-year statute of limitations triggered by certain notice or actions to bring these claims unless federal law allows a longer period.
CS/HB 91 HENRC modifies aspects of the non-reverting Natural Resources Trustee Fund. It specifies that this fund’s monies may be used only to restore, replace or acquire natural resources and may be spent only in that area which suffered injury, destruction or loss of a natural resource with some exceptions. CS/HB 91 HENRC requires the Trustee to establish an assessment costs subaccount in the Natural Resources Trustee Fund that receives these costs and is used for this purpose. It deletes the definition of assessment costs from this section (Section 75-7-5 NMSA 1978). 
 

 HB 91 duplicates SB 223082.