Proposed Legislation Would Cap NMED's Power to Fine Polluters

* Legislation proposed recently in the New Mexico State Legislature would place a cap on the amount that the New Mexico Environment Department (NMED) could fine entities that do not follow state environmental laws. The bill, which was introduced by Senator Stuart Ingle, limits NMED fines to $250,000.

The bill passed through the Senate Corporation and Transportation Committee with the support of the Association of Commerce and Industry. A spokesperson for the association argued that given the prevalence of large fines, NMED should be required to hold a hearing in cases of fines in excess of $250,000. However, the bill does not include a provision requiring hearings for large fines, stating only, "No order ... may assess a total civil penalty in excess of [$250,000]."

NMED Secretary Ron Curry argued against the bill, saying that NMED's oversight of large federal facilities, particularly those of the Department of Energy (DOE), requires large penalties for environmental violations. Curry argued that NMED's recent $2.4 million fine to the Waste Isolation Pilot Plant (WIPP) has created increased communication between NMED and WIPP officials.

In total, NMED fined New Mexico's three DOE facilities more than $7.8 million dollars in 2004. Curry said that to DOE facilities, $250,000 is like "a drop in the bucket."

Don Hancock, of Southwest Research and Information Center, argued that lower fines will burden taxpayers further, given that fines help to support state government. Hancock said, "This bill allows polluters to damage the public's health and not pay for it. Instead, taxpayers have to pay the health costs and pay increased taxes...."

Opponents of the bill are also concerned that a $250,000 fine limit would make it difficult for NMED to justify the expense of preparing environmental penalties, making oversight more lenient.

The legislation would also restrict NMED from issuing fines for environmental violations that occurred more than two years prior to the initiation of state action. Curry pointed out that it can take years to prove that there have been violations and that the two year time limit would prevent NMED from doing its job. Curry said, "You can't force groundwater, you can't force air pollution to move at a certain rate so you can measure it in a [two year] time frame."

Despite these concerns, Senator Pete Domenici has issued his support for the bill, calling large NMED fines cavalier. Domenici argued that large fines are an additional strain on taxpayers and "put further pressure on funding DOE accounts."

An editorial in the Albuquerque Tribune disagreed recently, stating that the legislation should absolutely not be passed. The Tribune said, "Domenici shouldn't blame the state for doing what's necessary to protect New Mexico's precious, limited and beautiful natural resources. We suggest his time would be better spent addressing with federal legislation the [DOE's] inability to live within the letter of environmental law. Strong words and legislation from one of DOE's biggest supporters might do more good than all the fines in the world."

The legislation will be heard next in the Senate Finance Committee, although a hearing has not yet been scheduled.

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