New Mexico Senate Bill 387 - Proposed Overhaul of the Natural Resources Trustee Act

February 13, 2009

• Author(s):
• Marte Lightstone

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• New Mexico Senate Bill 387[.PDF]

Summary

  New Mexico Senate Bill 387
Proposed Overhaul of the Natural Resources Trustee Act

          Senate Bill 387 seeks to rewrite the Natural Resources Trustee Act.  This is not a minor overhaul, but a complete revision of the current act and the bill proposes significant changes in the scope and authority of the Natural Resources Trustee.  In enacting the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), commonly known as "Superfund," Congress provided a comprehensive set of laws seeking to address the release or threatened release of hazardous substances, pollutants or contaminants into the environment.  CERCLA is focused on the human health and safety and environmental protection.  In the wake of the Exxon Valdez oil spill, Congress passed the Oil Pollution Act ("OPA") for oil pollution liability and clean-up similar to CERCLA.  (To see full text of Senate Bill 387, please click on the following link SB 0387) 

          Both CERCLA and the OPA provide for the designation of a Natural Resources Trustee by Federal agencies, States, and Tribes to act on behalf of the public.  Trustees are empowered to assess the injury to natural resources and to seek restoration of natural resources held in trust for the public.  Trustees are encouraged to work in a cooperation fashion with other Trustees.  The goal of a Natural Resources Trustee under CERCLA and the OPA is to assess injuries to natural resources and to restore such injuries.  While a trustee can sue for damages, those damages are to be used only for assessment of injury, and the restoration or replacement of the impacted natural resource.

          Senate Bill 387 seeks to redefine the role of the New Mexico Natural Resources Trustee beyond the scope contemplated in CERCLA and the OPA and the bill provides powers beyond those contemplated under federal law.

          Among the bill's provisions:

• "The state should recover damages for injury to natural resources, regardless of whether the natural resources have been or may be used or committed to use at any time and regardless of whether the natural resources are at present capable of being used," Section 1(D);
• The definition of an "injurious substance" includes oil of any kind or in any form, oil refuse and oil mixed waste, solid waste with infectious characteristics, and "any other substance that the trustee may by rule designate as an injurious substance." Section 2(A);
• There is no liability for the release of an injurious substance in compliance with a permit, (Section 3(E)), otherwise one can be liable, "with respect to any facility from which there is an intentional or unintentional release of an injurious substance into the environment," ...there "shall be joint and several liability to the state for all damages" for the following:
• the owner and operator of the facility at the time of release;
• any person who previously owned or operated the facility during a time in which the injurious substance was released, placed, disposed of or treated;
• any person who by agreement or otherwise arranged for release, placement, disposal or treatment of the injurious substance at the facility or arranged with a transporter for transport of the injurious substance to or from the facility whether or not the injurious substance was owned or possessed by that person; and
• any person who accepted the injurious substance for transport to a disposal or treatment facility or site selected by that person.  Section 3(A);
• Damages can be recovered "regardless of prospective or ongoing remediation efforts," Section 3(C); 
• The venue of a claim may be in either Santa Fe County or the county where the damages were sustained, Section 4(A);
• The bill provides that "no dual recovery is permitted," Section 5(A);
• No claim can be brought before the later of, "five years after the date that the trustee became aware of the nature and extent of the release and the extent of injuries caused by the release; or January 1, 2015," Section 6; and 
• The trustee may engage in rule-making to define the scope of the Act, Section 7.

          This is not a comprehensive analysis of the bill, but the bill is in potential conflict with comprehensive federal legislation addressing the same issues.  It includes provisions which are at the same time redundant to federal law, inconsistent with federal law, and, in some respects, broader than federal law.  Moreover, the discretion to enact rules defining the law can create regulations which conflict with CERCLA and the OPA.  The bill appears to be an attempt to create legislation in reaction to a judicial decision in the prior federal cases of New Mexico v. G.E., 467 F.3d 1223 (10th Cir. 2006) and New Mexico v. G.E., 332 F. Supp. 2d 1237 (2004) without addressing the basis for, or the policy behind the decisions, federal CERCLA, or the OPA.

          By seeking to regulate in an area which is already occupied by federal authority, the bill creates the real potential for confusion and inconsistency and may promote litigation over the scope of the Natural Resources Act rather than addressing the underlying issues of resource protection. 

          The bill has been referred to two Senate Committees. It has been placed on the agenda for the Senate Conservation Committee on February 12, 1009. 

          For questions regarding this legislation, please feel free to contact Marte D. Lightstone, (505) 848-1847, or mdl@modrall.com, others in the Natural Resources and Environment Department, or members of Modrall Sperling's Lobbying Group, including Patrick J. Rogers, Marco E. Gonzales, and Leslie Padilla.

• Download Article
• New Mexico Senate Bill 387[.PDF]