2023 New Mexico Statutes › Chapter 74 - Environmental Improvement › Article 4 - Hazardous Wastes › Section 74-4-4 - Duties and powers of the board.

A. The board shall adopt rules for the management of hazardous waste, as may be necessary to protect public health and the environment, that are equivalent to and at least as stringent as federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended:
(1) for the identification and listing of hazardous wastes, taking into account toxicity, persistence and degradability, potential for accumulation in tissue and other related factors, including flammability, corrosiveness and other hazardous characteristics; provided that, except as authorized by Sections 74-4-3.3 and 74-8-2 NMSA 1978, the board shall not identify or list any solid waste or combination of solid wastes as a hazardous waste that has not been listed and designated as a hazardous waste by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended;
(2) establishing standards applicable to generators identified or listed under this subsection, including requirements for:
(a) furnishing information on the location and description of the generator's facility and on the production or energy recovery activity occurring at that facility;
(b) recordkeeping practices that accurately identify the quantities of hazardous waste generated, the constituents of the waste that are significant in quantity or in potential harm to human health or the environment and the disposition of the waste;
(c) labeling practices for any containers used for the storage, transport or disposal of the hazardous waste that will identify accurately the waste;
(d) use of safe containers tested for safe storage and transportation of the hazardous waste;
(e) furnishing the information on the general chemical composition of the hazardous waste to persons transporting, treating, storing or disposing of the waste;
(f) implementation of programs to reduce the volume or quantity and toxicity of the hazardous waste generated;
(g) submission of reports to the secretary at such times as the secretary deems necessary, setting out the quantities of hazardous waste identified or listed pursuant to the Hazardous Waste Act that the generator has generated during a particular time period and the disposition of all hazardous waste reported, the efforts undertaken during a particular time period to reduce the volume and toxicity of waste generated and the changes in volume and toxicity of waste actually achieved during a particular time period in comparison with previous time periods; and
(h) the use of a manifest system and any other reasonable means necessary to ensure that all hazardous waste generated is designated for treatment, storage or disposal in, and arrives at, treatment, storage or disposal facilities, other than facilities on the premises where the waste is generated, for which a permit has been issued pursuant to the Hazardous Waste Act; that the generator of hazardous waste has a program in place to reduce the volume or quality and toxicity of waste to the degree determined by the generator to be economically practicable; and that the proposed method of treatment, storage or disposal is that practicable method currently available to the generator that minimizes the present and future threat to human health and the environment;
(3) establishing standards applicable to transporters of hazardous waste identified or listed under this subsection or of fuel produced from any such hazardous waste or of fuel from such waste and any other material, as may be necessary to protect human health and the environment, including requirements for:
(a) recordkeeping concerning the hazardous waste transported and its source and delivery points;
(b) transportation of the hazardous waste only if properly labeled;
(c) compliance with the manifest system referred to in Subparagraph (h) of Paragraph (2) of this subsection; and
(d) transportation of all the hazardous waste only to the hazardous waste treatment, storage or disposal facility that the shipper designates on the manifest form to be a facility holding a permit issued pursuant to the Hazardous Waste Act or the federal Resource Conservation and Recovery Act of 1976, as amended;
(4) establishing standards applicable to distributors or marketers of any fuel produced from hazardous waste, or any fuel that contains hazardous waste, for:
(a) furnishing the information stating the location and general description of the facility; and
(b) furnishing the information describing the production or energy recovery activity carried out at the facility;
(5) establishing performance standards as may be necessary to protect human health and the environment applicable to owners and operators of facilities for the treatment, storage or disposal of hazardous waste identified or listed under this section, distinguishing, where appropriate, between new facilities and facilities in existence on the date of promulgation, including requirements for:
(a) maintaining the records of all hazardous waste identified or listed under this subsection that is treated, stored or disposed of, as the case may be, and the manner in which the waste was treated, stored or disposed of;
(b) satisfactory reporting, monitoring, inspection and compliance with the manifest system referred to in Subparagraph (h) of Paragraph (2) of this subsection;
(c) treatment, storage or disposal of all such waste and any liquid that is not a hazardous waste, except with respect to underground injection control into deep injection wells, received by the facility pursuant to such operating methods, techniques and practices as may be satisfactory to the secretary;
(d) location, design and construction of hazardous waste treatment, disposal or storage facilities;
(e) contingency plans for effective action to minimize unanticipated damage from any treatment, storage or disposal of any hazardous waste;
(f) maintenance and operation of the facilities and requiring any additional qualifications as to ownership, continuity of operation, training for personnel and financial responsibility, including financial responsibility for corrective action, as may be necessary or desirable;
(g) compliance with the requirements of Paragraph (6) of this subsection respecting permits for treatment, storage or disposal;
(h) the taking of corrective action for all releases of hazardous waste or constituents from a solid waste management unit at a treatment, storage or disposal facility, regardless of the time at which waste was placed in the unit; and
(i) the taking of corrective action beyond a facility's boundaries where necessary to protect human health and the environment unless the owner or operator of that facility demonstrates to the satisfaction of the secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. Rules adopted and promulgated under this subparagraph shall take effect immediately and shall apply to all facilities operating under permits issued under Paragraph (6) of this subsection and to all landfills, surface impoundments and waste pile units, including any new units, replacements of existing units or lateral expansions of existing units, that receive hazardous waste after July 26, 1982. No private entity shall be precluded by reason of criteria established under Subparagraph (f) of this paragraph from the ownership or operation of facilities providing hazardous waste treatment, storage or disposal services where the entity can provide assurance of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage or disposal of specified hazardous waste;
(6) requiring each person owning or operating, or both, an existing facility or planning to construct a new facility for the treatment, storage or disposal of hazardous waste identified or listed under this subsection to have a permit issued pursuant to requirements established by the board;
(7) establishing procedures for the issuance, suspension, revocation and modification of permits issued under Paragraph (6) of this subsection, which rules shall provide for public notice, public comment and an opportunity for a hearing prior to the issuance, suspension, revocation or major modification of any permit unless otherwise provided in the Hazardous Waste Act;
(8) defining major and minor modifications; and
(9) establishing procedures for the inspection of facilities for the treatment, storage and disposal of hazardous waste that govern the minimum frequency and manner of the inspections, the manner in which records of the inspections shall be maintained and the manner in which reports of the inspections shall be filed; provided, however, that inspections of permitted facilities shall occur no less often than every two years.
B. The board shall adopt rules:
(1) concerning hazardous substance incidents; and
(2) requiring notification to the department of any hazardous substance incidents.
C. The board shall adopt rules concerning storage tanks as may be necessary to protect public health and the environment and that, in the case of underground storage tanks, are equivalent to and at least as stringent as federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended.
D. The board shall adopt rules concerning storage tanks that implement the federal Energy Policy Act of 2005, Pub. L. 109-58, as amended, and that are equivalent to and at least as stringent as the Energy Policy Act and its grant guidelines and regulations.
E. Rules adopted pursuant to this section shall include:
(1) standards for the installation, operation, maintenance, repair and replacement of storage tanks;
(2) requirements for financial responsibility;
(3) standards for inventory control;
(4) standards for the detection of leaks from and the integrity-testing and monitoring of storage tanks;
(5) standards for the closure and dismantling of storage tanks;
(6) requirements for recordkeeping;
(7) requirements for the reporting, containment and remediation of all leaks from any storage tanks; and
(8) criteria and procedures for classifying a storage tank facility as ineligible, and reclassifying a storage tank facility as eligible, for the delivery, deposit, acceptance or sale of petroleum products.
F. The criteria and procedures adopted by the board pursuant to this section shall require the department to classify a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products if the storage tank facility has not installed required equipment for spill prevention, overfill protection, leak detection or corrosion protection, including required corrosion protection equipment for a buried metal flexible connector.
G. The criteria and procedures adopted by the board pursuant to this section may allow the department to classify a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products when the owner or operator has failed to comply with a written warning within a reasonable period of time and the warning concerns:
(1) improper operation or maintenance of required equipment for spill prevention, overfill protection, leak detection or corrosion protection;
(2) failure to maintain required financial responsibility for corrective action; or
(3) operation of the storage tank facility in a manner that creates an imminent threat to the public health and the environment.
H. Rules adopted by the board pursuant to this section shall defer classifying a storage tank facility as ineligible for delivery, deposit, acceptance or sale of petroleum products if the ineligible classification would jeopardize the availability of, or access to, motor fuel in any rural and remote areas.
I. Rules adopted by the board pursuant to this section shall allow the department to authorize delivery or deposit of petroleum products to:
(1) an emergency generator tank that is otherwise ineligible for delivery or deposit if a commercial power failure or other declared state of emergency exists and the emergency generator tank provides power supply, stores petroleum and is used solely in connection with an emergency system, legally required standby system or optional standby system; or
(2) a storage tank facility that is otherwise ineligible for delivery or deposit if the delivery or deposit is necessary to test or calibrate a tank.
J. The board shall adopt rules concerning the management of used oil that are equivalent to and at least as stringent as federal regulations adopted by the federal environmental protection agency pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended.
K. In the event the board wishes to adopt rules that are identical with regulations adopted by an agency of the federal government, the board, after notice and hearing, may adopt such rules by reference to the federal regulations without setting forth the provisions of the federal regulations.
L. Before the board adopts a rule for the management of hazardous waste, concerning storage tanks or concerning used oil, that is more stringent than the federal regulations, the board shall make a determination, based on substantial evidence and after notice and public hearing, that the proposed rule will be more protective of public health and the environment.
History:
1953 Comp., § 12-9B-4, enacted by Laws 1977, ch. 313, § 4; 1981 (1st S.S.), ch. 8, § 4; 1987, ch. 179, § 3; 1989, ch. 322, § 2; 1992, ch. 43, § 2; 1993, ch. 127, § 1; 2001, ch. 323, § 2; 2001, ch. 325, § 3; 2002, ch. 47, § 2; 2010, ch. 27, § 2; 2021, ch. 133, § 3.
ANNOTATIONS
Cross references.
— For definition of "department",
see
74-4-3 NMSA 1978.
For the Resource Conservation and Recovery Act of 1976,
see
42 U.S.C. § 6901 et seq.
The 2021 amendment,
effective July 1, 2021, required that the rules adopted by the environmental improvement board, concerning the management of hazardous waste and concerning storage tanks, that protect public health and that implement the federal Energy Policy Act of 2005 be at least as stringent as federal regulations adopted by the federal environmental protection agency, and required that a board's decision to adopt a rule, concerning the management of hazardous waste, storage tanks or used oil, that is more stringent than the federal regulations be based on substantial evidence after notice and public hearing; after each occurrence of "equivalent to and", deleted "no more" and added "at least as", and after "stringent", deleted "than" and added "as"; deleted former Subsection J and redesignated former Subsections K and L as Subsection J and K, respectively; and added Subsection L.
The 2010 amendment,
effective May 19, 2010, added Subsection D; in Subsection E, in the introductory sentence, after "pursuant to this", changed "subsection" to "section"; in Subsection E(1), after "operation", deleted "and", and after "maintenance", added "repair and replacement"; added Paragraph (8) of Subsection E; and added Subsections F, G, H and I.
The 2002 amendment,
effective May 15, 2002, added Subsection E, and redesignated former Subsection E as Subsection F.
The 2001 amendment,
effective July 1, 2001, deleted the citation to the act noted in Subparagraph A(3)(d); in the preliminary language of Subsection C, deleted "underground" preceding "storage tanks", inserted "in the case of underground storage tanks" preceding "are equivalent to"; deleted "underground" preceding "storage tanks" in Paragraphs C(1), (4), (5) and (7); and making stylistic.
The 1993 amendment,
effective June 18, 1993, inserted "as may be necessary to protect public health and the environment, that are" in the introductory language in Subsection A; inserted "as may be necessary to protect public health and the environment" in the introductory language in Subsection C; added present Subsection D and redesignated former Subsection D as present Subsection E.
The 1992 amendment,
effective March 6, 1992, substituted "secretary" for "director" in Subsections A(2)(g), A(5)(c), and in the first sentence of Subsection A(5)(i); inserted "adopted and" in the second sentence of Subsection A(5)(i); substituted "owning or operating or both" for "owning and operating" in Subsection A(6); rewrote Subsection A(7); added present Subsection A(8); redesignated former Subsection A(8) as present Subsection A(9); substituted "department" for "division" in Subsection B(2); and made minor stylistic changes throughout the section.
Federal sovereign immunity waived.
— Resource Conservation and Recovery Act (42 U.S.C. § 6961) waived federal sovereign immunity from certain state imposed permit conditions addressing the presence of radionuclides in the disposal of hazardous waste at the Los Alamos National Laboratory where the conditions imposed by the permit to incinerate hazardous waste at the laboratory implemented objective, preexisting state standard that was capable of uniform application and was considered a "requirement" under Resource Conservation and Recovery Act.
U.S. v. N.M.
, 32 F.3d 494 (10th Cir. 1994).
No excuse from compliance where insufficient funds in corrective action fund.
— The owner or operator of an underground storage tank which has experienced a release is not excused from compliance with corrective action requirements by reason of the insufficiency or unavailability of monies in the corrective action fund to meet the costs of corrective action. 1991 Op. Att'y Gen. No. 91-08.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 61A Am. Jur. 2d Pollution Control § 4.
State or local regulation of transportation of hazardous materials as pre-empted by Hazardous Materials Transportation Act (49 U.S.C.S. § 1801 et seq.), 78 A.L.R. Fed. 289.
What constitutes "hazardous waste" subject to regulation under Resource Conservation and Recovery Act (42 USCS §§ 6901 et seq.), 135 A.L.R. Fed. 197.