Senate Bill 519 Proposing to Amend New Mexico's Radiation Protection Act

INTRODUCTION

This article summarizes my review and analysis of Senate Bill 519, which proposes to amend New Mexico's Radiation Protection Act, NMSA 1978, § 74-3-1, et seq. In essence, the proposed changes appear to be designed to beef up the civil and criminal enforcement authority and emergency powers of NMED (and its Environmental Enforcement Division). The proposed legislation also provides greater flexibility to NMED. The following discussion provides some background about the Act and an analysis of the proposed amendments.

DISCUSSION

A. Background About the Radiation Protection Act

The Radiation Protection Act was first adopted in 1971 and amended in 1977. The Act established a state registration and licensing regime for "radiation equipment" (left for regulatory definition) and "radioactive material" (legislatively defined as "any materials or sources, regardless of chemical or physical state, which emit radiation"). In essence, radiation equipment has to be registered with NMED (§ 74-3-8), and radioactive material must be licensed by the federal Nuclear Regulatory Commission or by NMED (§ 74-3-9). Fees from registration certificates and licenses issued by NMED go into a "radiation protection fund" for use by NMED in carrying out the provisions of the Act (§ 74-3-5.1). The Act also establishes a "continued care fund" for use by NMED in "remedying and preventing situations which may be harmful to the health, safety and welfare or property of the people and which involve abandoned wastes or inoperative facilities which are or were operated by depositors to the continued care fund" (§ 74-3-7). The Act created a seven-member radiation technology advisory council of experts to advise NMED and EIB on technical matters relating to radiation.

Most importantly for these purposes, the Radiation Protection Act imposed civil and criminal penalties and provided NMED with certain enforcement order authority, emergency powers, and the power to seek injunctive relief from a district court with the help of the Attorney General (§§ 74-3-11 and –12). In essence, these are the provisions that would be repealed and replaced by Senate Bill 519, and the following discussion explains the proposed changes.

B. Exercises of NMED Emergency Powers Appear to be Less Confined

Under Senate Bill 519, there would be a new section addressing emergency powers of the NMED Secretary. The most important changes appear to be: (1) the standard for when an emergency exists; (2) a general broadening of the kinds of actions that NMED could take in the name of an "emergency"; (3) the elimination of an express requirement to hold a hearing as soon as possible, and; (4) the added enforcement hammer of fines for willful failures to comply with an emergency order. Each of these is discussed in turn here.

1. The existing emergency powers provision, § 74-3-11(B), allows NMED's secretary to exercise its emergency powers only "if he determines that immediate action is required to protect human health and safety." (Emphasis added.) The proposed amendment would require the finding of a violation of a registration or license issued or administered by NMED, or any regulation issued under the Act. NMED would be able to take emergency action if the Secretary "determines that [the] violation may present an imminent and substantial endangerment to health and human safety." (Emphasis added.) Although this may not appear to be a significant change in the standard for exercising emergency powers, the difference is between when something "is required" for protection, and when a violation "may" present an "imminent and substantial endangerment." The difference in standard may give the secretary more leeway. In particular, we should be mindful that the "imminent and substantial endangerment" language is the same as what EPA must find before issuing a Section 106 order under CERCLA, and the courts, while acknowledging that language, have given it minimal effect and have had little difficulty finding endangerment from actual or threatened releases under CERCLA.
2. The existing emergency powers provision only authorizes a cease and desist order. The proposed legislation allows the Secretary to "bring suit to immediately restrain the person from the violation or take such other action as may be necessary or both." The authority to take "other action" would not appear to be limited to actions that may be necessary to protect human health and safety, but would include such actions.
3. The existing emergency powers provision gives the subject of an emergency order the opportunity to be heard "as soon as possible" and otherwise provides for expedited hearings. Under the proposed amendment, there are no comparable provisions for an expedited hearing other than what may be afforded if the emergency action is to seek injunctive relief such as a TRO from a court. Emergency orders by NMED would not expressly require an expedited hearing.
4. The existing emergency powers provision does not authorize the Secretary to impose civil fines for violating an emergency order, although the Act authorizes courts to impose up to a $5,000 per day civil fine for violations of orders and regulations. The proposed provision would allow the Secretary to assess up to $15,000 per day civil penalties if an emergency order of the Secretary is "willfully" violated. No court action would be required for the Secretary to assess these fines.

C. NMED's Other Civil Enforcement Authority Would be Flexible and Stronger

Under existing § 74-3-11, which would be repealed, if NMED has good cause to believe a license condition or regulation is being violated, it may notice a hearing and then issue a cease and desist order or revoke a license it issued if it finds a violation or threatened violation. The proposed legislation gives NMED considerably greater flexibility by providing for compliance orders and penalty assessment authority. The compliance order authority would include but not be limited to suspensions or revocations of registrations or licenses issued by NMED. Penalty assessments in a compliance order can be as high as $15,000 per day, and another $15,000 per day could be assessed for violation of the compliance order. Unlike the existing provision, which limits civil fines to $5,000 per day and requires that a court impose them, the proposed legislation gives the NMED Secretary the penalty assessment power. In determining the amount of a penalty, the Secretary would have to take into account any relevant factors including the seriousness of the violation and any good-faith efforts to comply with the applicable requirements.

D. Criminal Penalties For Violations Could Include Fines and Imprisonment

Under existing § 74-3-12, which would also be repealed, a person can be guilty of a misdemeanor for "willfully" violating a provision of the Act or any rule or regulation promulgated thereunder. The existing section is silent on the punishment to be imposed, and thus the punishment depends on the general law relating to misdemeanors. The proposed legislation eliminates the willfulness mens rea requirement and imposes specified punishments for just "knowingly" violating the Act or a regulation adopted thereunder. The proposed change in the mens rea standard likely is significant, especially when one considers that: (1) similar language in other environmental statutes have been interpreted broadly to mean someone knew or should have known of the violation, and; (2) there is a doctrine known as the "responsible corporate officer" doctrine that puts unwitting managers or officers in jeopardy of criminal violations where they were in a position to prevent the violation but failed to do so. The specified punishments under the proposed legislation include imprisonment for up to 364 days (one day shy of one year) or a fine not to exceed $10,000, or both.

The effective date of proposed Senate Bill 519, if passed, would be July 1, 2003.