2018 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 1 - General Provisions
Section 74-1-8 - Board; duties.

A. The board is responsible for environmental management and consumer protection. In that respect, the board shall promulgate rules and standards in the following areas:

(1) food protection;

(2) water supply, including a capacity development program to assist water systems in acquiring and maintaining technical, managerial and financial capacity in accordance with Section 1420 of the federal Safe Drinking Water Act and rules authorizing imposition of administrative penalties for enforcement;

(3) liquid waste, including exclusive authority to establish on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services and to implement and administer an inspection and permitting program for on-site liquid waste systems;

(4) air quality management as provided in the Air Quality Control Act [Chapter 74, Article 2 NMSA 1978];

(5) radiation control as provided in the Radiation Protection Act [Chapter 74, Article 3 NMSA 1978];

(6) noise control;

(7) nuisance abatement;

(8) vector control;

(9) occupational health and safety as provided in the Occupational Health and Safety Act [Chapter 50, Article 9 NMSA 1978];

(10) sanitation of public swimming pools and public baths;

(11) plumbing, drainage, ventilation and sanitation of public buildings in the interest of public health;

(12) medical radiation, health and safety certification and standards for radiologic technologists as provided in the Medical Radiation Health and Safety Act [Medical Imaging and Radiation Therapy Health and Safety Act, Chapter 61, Article 14E NMSA 1978];

(13) hazardous wastes and underground storage tanks as provided in the Hazardous Waste Act [Chapter 74, Article 4 NMSA 1978]; and

(14) solid waste as provided in the Solid Waste Act [74-9-1 through 74-9-43 NMSA 1978].

B. Nothing in Subsection A of this section imposes requirements for the approval of subdivision plats in addition to those required elsewhere by law. Nothing in Subsection A of this section preempts the authority of any political subdivision to approve subdivision plats.

C. Administrative penalties collected pursuant to Paragraph (2) of Subsection A of this section shall be deposited in the water conservation fund.

D. On-site liquid waste system fees shall be deposited in the liquid waste fund.

History: 1953 Comp., § 12-19-11, enacted by Laws 1971, ch. 277, § 11; recompiled as 1953 Comp., § 12-12-11 by Laws 1972, ch. 51, § 9; 1973, ch. 340, § 6; 1977, ch. 122, § 6; 1983, ch. 317, § 14; 1989, ch. 223, § 2; 1989, ch. 289, § 3; 1990, ch. 99, § 65; 1993, ch. 100, § 2; 1997, ch. 139, § 8; 1999, ch. 203, § 2; 2000, ch. 86, § 2; 2000, ch. 96, § 2.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2009, ch. 106, § 1 changed the title of Chapter 61, Article 14E from "Medical Radiation Health and Safety Act" to "Medical Imaging and Radiation Therapy Health and Safety Act".

Cross references. — For the Solid Waste Act, see 74-9-1 NMSA 1978 and notes thereto.

For the federal Safe Drinking Water Act, see 21 U.S.C. § 349 and 42 U.S.C. § 300f et seq.

2000 multiple amendments. — Laws 2000, ch. 86, § 2, effective May 17, 2000, substituting "rules" for "regulations" throughout the section, inserting "and collection of license, registration and other related fees not to exceed fees charged by the United States nuclear regulatory commission for similar licenses" in Subsection A(5), and adding Subsection D, was approved on March 7, 2000. However, Laws 2000, ch. 96, § 2, also effective May 17, 2000, substituting "rules" for "regulations" in the preliminary language of Subsection A and in Subsection A(2); inserting "to establish on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services" in Subsection A(3); and adding Subsection D, was approved later on March 7, 2000. The section is set out as amended by Laws 2000, ch. 96, § 2. See 12-1-8 NMSA 1978.

The 1999 amendment, effective April 6, 1999, rewrote the section heading which formerly read "Environmental improvement", rewrote Subsection A(2) which formerly read "water supply, including regulations establishing a reasonable system of fees for the provision of services by the department to public water supply systems", and in Subsection C, substituted "Administrative penalties collected" for "Fees collected" and "conservation fund" for "supply fund".

The 1997 amendment, effective June 20, 1997, substituted "department" for "agency" in Paragraph A(2) and added "including exclusive authority to implement and administer an inspection and permitting program for on-site liquid waste systems" in Paragraph A(3).

The 1993 amendment, effective March 31, 1993, rewrote Subsection C which read "Effective July 1, 1992, all fees collected pursuant to Subsection A of this section shall be deposited in the general fund."

Board has paramount environmental improvement authority. — It is the intention of the legislature to give the environmental improvement board statewide, paramount authority to enforce regulations and standards in the various areas listed and that all other entities of government and political subdivisions thereof must conform. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Board promulgates regulations. — There is no inconsistency or conflict between 3-48-2 NMSA 1978 and this section. The latter gives the board statewide responsibility for environmental management and protection, making the promulgation of regulations and standards by the board in the areas of liquid waste and solid waste sanitation and refuse disposal mandatory. The former merely gives municipalities the option or discretion to enact ordinances governing the collection and disposal of refuse. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248 (decided under prior law).

For liquid and solid waste and refuse. — The phrase "solid waste sanitation," as used in Subsection A(3) is not limited or qualified by the phrase, "refuse disposal." "Liquid waste," "solid waste" and "refuse" constitute three distinct categories of environmental concern. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Board's duty to prepare regulations. — The environmental improvement board has a duty to have the regulations prepared by a staff of its own. It has no right to delegate this authority to one who is an "interested person" at a public hearing. Kerr-McGee Nuclear Corp. v. N.M. Envtl. Improvement Bd., 1981-NMCA-044, 97 N.M. 88, 637 P.2d 38, cert. quashed, 97 N.M. 242, 637 P.2d 1087.

Administrative bodies and officers cannot delegate power, authority and functions which under the law may be exercised only by them, which are quasi-judicial in character or which require the exercise of judgment. Kerr-McGee Nuclear Corp. v. N.M. Envtl. Improvement Bd., 1981-NMCA-044, 97 N.M. 88, 637 P.2d 38 (Ct. App.), cert. quashed, 97 N.M. 242, 637 P.2d 1087.

Board cannot act lawfully alone in adopting radiation regulations. The board must obtain "the advice and consent" of the radiation technical advisory council before it can adopt regulations. Kerr-McGee Nuclear Corp. v. N.M. Envtl. Improvement Bd., 1981-NMCA-044, 97 N.M. 88, 637 P.2d 38, cert. quashed, 97 N.M. 242, 637 P.2d 1087.

Liquid waste disposal regulations not vague. — The revised liquid disposal regulations adopted pursuant to Subsection A(3) of this section are not facially vague. Climax Chem. Co. v. N.M. Envtl. Improvement Bd., 1987-NMCA-065, 106 N.M. 14, 738 P.2d 132.

Requirements of cleaning refuse transportation vehicle. — Regulations adopted under this article requiring that any vehicle employed in collection or transportation of waste and refuse be cleaned at such times and in such manner as to prevent offensive odors and unsightliness are not constitutionally repugnant for vagueness. The question to be asked is: What might a reasonable person of average sensibilities consider to be an offensive odor or unsightly condition, and the answer is capable of common understanding. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Providing sound storage facilities. — Regulations adopted pursuant to this article requiring that storage facilities shall be fly proof, rodent proof and leak proof are neither unconstitutionally vague nor impossible of accomplishment. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Registering prior to modification of solid waste disposal system. — Regulation adopted pursuant to this article which provides that prior to the creation or modification of a system for the collection, transportation or disposal of solid waste the person who is operating or will operate the system shall obtain a registration certificate from the board, where "modification" is defined as any significant change in the physical characteristics or method of operation of a system for the collection, transportation or disposal of solid waste, is not unconstitutionally vague. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Adequate fire prevention at sanitary landfill sites. — Requirements of "adequate" means to prevent and extinguish fires at sanitary landfill sites and requirements of one or more sanitary landfills or other disposal facilities, except modified landfills, for populations exceeding 3,000 and one or more sanitary landfills or other disposal facilities, not excluding modified landfills, for populations under 3,000 and for disposal of waste collected from parks, recreational areas and highway rest areas, "as necessary," found in regulations adopted under this article, are not unconstitutionally vague. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Traditional jurisdiction of courts to enjoin or abate nuisances. — It readily falls within the traditional jurisdiction of the court to enjoin, abate or impose damages for creation of a nuisance. Gonzalez v. Whitaker, 1982-NMCA-050, 97 N.M. 710, 643 P.2d 274.

Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M.L. Rev. 105 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39A C.J.S. Health and Environment § 133.