A. The board shall adopt regulations establishing financial responsibility requirements. The regulations shall be designed to assure that there are adequate sources of funds to provide for:
(1) closure, post-closure inspection and maintenance and environmental monitoring and control;
(2) removal and disposal of buildings, fences, roads and other improvements;
(3) reclamation of affected or contaminated lands and waters;
(4) construction of any solid waste cover or containment system required as a condition of any solid waste facility permit;
(5) stabilization, removal and off-site treatment or disposal of any contaminated material that is being stored or treated;
(6) decontamination, dismantling and removal of any solid waste storage, treatment or disposal equipment;
(7) operation of any environmental monitoring systems or pollution control systems that are required as a condition of any solid waste facility permit or by order of the director; and
(8) conducting, only for landfill disposal facilities, periodic post-closure inspections of cover systems, surface water diversion structures, monitor wells or systems, pollutant detection and control systems and performing maintenance activities to correct deficiencies that are discovered.
B. Sources of funds provided to meet financial responsibility requirements established in this section shall be available during the operating life of the solid waste facility and for a post-closure period to be set by the board.
C. The amount of any financial responsibility requirement shall be established by the director in accordance with procedures contained in regulations of the board, but shall not be less than an amount sufficient to satisfy the purposes specified in Subsection A of this section.
D. The acceptable methods of furnishing evidence of financial responsibility shall be specified by the board and shall include evidence of trust funds, performance bonds, insurance and irrevocable letters of credit in combination with other methods specified in this section; provided that irrevocable letters of credit shall not constitute more than fifty percent of the total financial responsibility required. Methods for evidencing financial responsibility for local governments shall include all methods approved by the federal environmental protection agency. Local government owners of solid waste facilities may determine the method of evidencing financial responsibility required of private operators under contract or agreement with the local government. Such evidence of financial assurance shall be approved by the director. All documents evidencing financial assurances provided pursuant to this section shall be payable to the New Mexico governmental entity or entities that own or operate the solid waste facility that is the subject of the financial assurance. If no New Mexico governmental entity or governmental entities own or operate the solid waste facility that is the subject of the financial assurance, the financial assurance shall provide for payment to the state of New Mexico.
E. The United States, the state of New Mexico and any agency, department, instrumentality, office or institution of those governments shall not be required to provide any financial assurances pursuant to this section. This exemption shall not apply, however, to any private person who contracts with the state of New Mexico or any agency, department, instrumentality, office, institution or political subdivision of the state of New Mexico.
History: Laws 1990, ch. 99, § 35; 1993, ch. 246, § 4.
ANNOTATIONSThe 1993 amendment, effective April 6, 1993, in Subsection D, rewrote the first sentence and added the present second and third sentences; and in Subsection E, substituted "or institution" for "or political subdivision" in the first sentence.
Post-permit compliance. — The Solid Waste Act and regulations permit the environment department to require post-permit compliance, rather than pre-permit compliance, with some of the regulations governing financial assurance. Municipal applicant for a landfill permit is not required to submit a year-end financial statement before it may be issued a permit. Pickett Ranch, LLC v. Curry, 2006-NMCA-082, 140 N.M. 49, 139 P.3d 209.