2020 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 2 - Air Pollution
Section 74-2-12 - Enforcement; compliance orders; field citations.

A. When, on the basis of any information, the secretary or the director determines that a person has violated or is violating a requirement or prohibition of the Air Quality Control Act, a regulation promulgated pursuant to that act or a condition of a permit issued under that act, the secretary or the director may:

(1) issue a compliance order within one year after the violation becomes known by the department or the local agency stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for a past or current violation, or both; or

(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

B. An order issued pursuant to Subsection A of this section may include a suspension or revocation of the permit or portion thereof issued by the secretary or the director that is alleged to have been violated. Any penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) per day of noncompliance for each violation.

C. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the person named therein submits a written request to the secretary or the director for a public hearing. Upon such request, the secretary or the director shall promptly conduct a public hearing. The secretary or the director shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward the hearing officer's recommendation based thereon to the secretary or the director, who shall make the final decision.

D. The environmental improvement board or the local board may implement a field citation program through regulations establishing appropriate minor violations for which field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per day of violation may be issued by officers or employees of the department or the local agency as designated by the secretary or the director.

E. A person to whom a field citation is issued pursuant to Subsection D of this section may, within a reasonable time as prescribed by regulation by the environmental improvement board or the local board, elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final.

F. Payment of a civil penalty required by a field citation issued pursuant to Subsection D of this section shall not be a defense to further enforcement by the department or the local agency to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act if the violation continues.

G. In determining the amount of a penalty to be assessed pursuant to this section, the secretary, the director or the person issuing a field citation shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors.

H. In connection with a proceeding under this section, the secretary or the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.

I. If a person fails to comply with an administrative order, the secretary or director may initiate an action to suspend or revoke the permit, or portion thereof, alleged to have been violated or to commence a civil action in district court to enforce the order, or to suspend or revoke the permit, or both.

J. If a person fails to pay an assessment of a civil penalty, the secretary or director may commence a civil action in district court to collect the civil penalties assessed in the order.

K. Penalties collected pursuant to this section shall be deposited in the:

(1) municipal or county general fund, as applicable, if the administrative order or field citation was directed to a source located within a local authority; or

(2) state general fund if the administrative order or field citation was directed to any other source.

History: 1978 Comp., § 74-2-12, enacted by Laws 1992, ch. 20, § 14; 2001, ch. 133, § 3; 2006, ch. 61, § 1.

Cross references. — For definitions of "department," "board", "secretary", and "director," see 74-2-2 NMSA 1978.

Repeals and reenactments. — Laws 1992, ch. 20, § 14 repealed former 74-2-12 NMSA 1978, as enacted by Laws 1967, ch. 277, § 11, and enacted a new section, effective March 5, 1992.

The 2006 amendment, effective May 17, 2006, added Subsection I to provide remedies for violation of a permit and added Subsection J to provide remedies for failure to pay an assessment of a civil penalty.

The 2001 amendment, effective June 15, 2001, inserted "within one year after the violation becomes known by the department or the local agency" in Paragraph A(1).

Opportunity to comply not required before imposition of penalties. — Statutory penalties can be imposed without the department of environment having first sought voluntary cooperation and compliance. Espinosa v. Roswell Tower, Inc., 1996-NMCA-006, 121 N.M. 306, 910 P.2d 940.

Responsibility for enforcement. — Enforcement of New Mexico regulations and standard's more stringent than, or in addition to, the federal standards and regulations is the state's responsibility; the environmental improvement board has state-wide responsibility for enforcing the Air Quality Control Act but the Albuquerque-Bernalillo county air quality control board has this responsibility in the Albuquerque-Bernalillo county area. 1987 Op. Att'y Gen. No. 87-11.

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. — 61A Am. Jur. 2d Pollution Control § 4.

Validity of regulation of smoke and other air pollution, 78 A.L.R.2d 1305.

Necessity of showing scienter, knowledge or intent, in prosecution for violation of air pollution or smoke control statute or ordinance, 46 A.L.R.3d 758.

Maintainability in state court of class action for relief against air or water pollution, 47 A.L.R.3d 769.

Propriety of court's consideration of ecological effects of proposed project in determining right of condemnation, 47 A.L.R.3d 1267.

Air pollution control: sufficiency of evidence of violation in administrative proceeding terminating in abatement order, 48 A.L.R.3d 795.

Pollution control: preliminary mandatory injunction to prevent, correct or reduce effects of polluting practices, 49 A.L.R.3d 1239.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665.

Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution, 19 A.L.R.4th 456.

Standing to sue for violation of state environmental regulatory statute, 66 A.L.R.4th 685.

Construction, applicability and effect of § 304 of Clean Air Amendments of 1970 (42 U.S.C.S. § 1857h-2) in actions against alleged violators, 37 A.L.R. Fed. 320, 85 A.L.R. Fed. 118.

Construction and application of 42 USCS § 7604(d) pertaining to recovering costs of litigation in suits under Clean Air Act, 85 A.L.R. Fed. 118.

39A C.J.S. Health and Environment § 150.