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Editorial: Revised air quality penalty rules tied to environment

New Mexico Environment Secretary Ryan Flynn correctly wants to ensure that penalties assessed against air quality violators are used for environmental improvements for the affected communities and are relevant to the violations themselves.

Ryan has revised the Environment Department’s Air Quality Bureau Civil Penalty Policy, including penalty agreements known as Supplemental Environmental Projects or SEPs, which allow a polluter to voluntarily take on a project in lieu of a portion of the civil penalty. The projects must align with the department’s environmental mission and goals.

In light of what Flynn and other NMED officials say have been past abuses of SEP enforcement powers, probably the most significant changes prohibit NMED or Air Quality Bureau employees from recommending SEP projects and ensure that projects do “not involve any donation or gift of any kind to any individual or entity, including a nonprofit organization or a federal state or local government entity.”

Flynn cited several examples of what he is trying to correct, including a 2008 donation under the administration of former Gov. Bill Richardson of more than half a million dollars in SEP penalties to the Western Governors Association to fund the Western Climate Initiative. Flynn said $20,000 also went to a nongovernmental organization called the Climate Registry.

Another example he cited was the donation of fines to an elementary school, a fire department and a community center in Mesquite, a small community south of Las Cruces. The fines were against Helena Chemical, a feed and fertilizer company operating there. While the fines in Mesquite may have gone to worthwhile causes, they did not directly relate to the violations.

Since Flynn became secretary in 2013, the use of SEPs has changed, and the proposed policy revisions reflect that. Fewer SEPs have been negotiated, but penalties have greatly increased.

From 2003-2010, under the previous administration, the Environment Department negotiated 84 SEPs totaling $53 million in penalties. From 2011-2016 so far there have been 21 agreements, totaling $80.8 million.

But that includes the $74 million in penalties the state and department levied on the U.S. Department of Energy as a result of the February 2014 radiation leak at the Waste Isolation Pilot Plant, a truck fire in the underground nuclear waste repository and the mishandling of waste at the Los Alamos National Laboratory that led to the leak. The penalty is the largest ever levied against the federal government.

Those two agreements directed the money to be used for projects relevant to the violations, such as improvements to roads used to transport waste from the lab to WIPP, water projects at LANL and an emergency operations center in Carlsbad, near the WIPP site.

The proposed air quality policy changes have been in the works for about two years and are now up for public comment through June 10. Minor revisions may arise from the public comments.

These rule changes should protect against abuse and prevent people or entities with friends in high places from having pet projects benefit from environmental violations.

Implementing clearer and more rigorous rules is a good move by Secretary Flynn.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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