2023 New Mexico Statutes › Chapter 74 - Environmental Improvement › Article 1 - General Provisions › Section 74-1-9 - Adoption of regulations; notice and hearing; appeal.

A. Any person may recommend or propose regulations to the board for promulgation. The board shall determine whether or not to hold a hearing within sixty days of submission of a proposed regulation.
B. No regulation shall be adopted until after a public hearing by the board. As used in this section, "regulation" includes any amendment or repeal thereof. Hearings on regulations of nonstatewide application shall be held within that area which is substantially affected by the regulation. Hearings on regulations of statewide application may be held at Santa Fe or within any area of the state substantially affected by the regulation. In making its regulations, the board shall give the weight it deems appropriate to all relevant facts and circumstances presented at the public hearing, including but not limited to:
(1) character and degree of injury to or interference with health, welfare, animal and plant life, property and the environment;
(2) the public interest, including the social, economic and cultural value of the regulated activity and the social, economic and cultural effects of environmental degradation; and
(3) technical practicability, necessity for and economic reasonableness of reducing, eliminating or otherwise taking action with respect to environmental degradation.
C. The standards for regulations set forth in Subsection A [Subsection B] of this section do not apply to the promulgation of regulations under the Air Quality Control Act [Chapter 74, Article 2 NMSA 1978]; or any other act in which specific standards are set forth for the board's consideration.
D. Notice of the hearing shall be given at least sixty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The proposed language amending any existing regulation or any proposed new regulation shall be made available to the public as of the date the notice of the hearing is given. The notice shall also state where interested persons may secure copies of any proposed amendment or new regulation. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the board for advance notice of hearings.
E. At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, proposed changes to the proposed regulation, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the board.
F. The board may designate a hearing officer to take evidence in the hearing. A transcript shall be made of the entire hearing proceedings.
G. No regulation or amendment or repeal thereof adopted by the board shall become effective until thirty days after its filing under the State Rules Act [Chapter 14, Article 4 NMSA 1978].
H. Any person who is or may be affected by a regulation adopted by the board may appeal to the court of appeals for further relief. All such appeals shall be upon the transcript made at the hearing and shall be taken to the court of appeals within thirty days after filing of the regulation under the State Rules Act.
I. The procedure for perfecting an appeal to the court of appeals under this section consists of the timely filing of a notice of appeal with a copy attached to the regulation from which the appeal is taken. The appellant shall certify in his notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support his appeal to the court, at the expense of the appellant, including three copies which he shall furnish to the board.
J. Upon appeal, the court of appeals shall set aside the regulation only if found to be:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence in the transcript; or
(3) otherwise not in accordance with law.
History:
1953 Comp., § 12-19-13, enacted by Laws 1971, ch. 277, § 13; recompiled as 1953 Comp., § 12-12-13, by Laws 1972, ch. 51, § 9; 1973, ch. 340, § 7; 1974, ch. 64, § 1; 1982, ch. 73, § 24; 1985, ch. 17, § 1.
ANNOTATIONS
Cross references.
— For notice by publication,
see
14-11-1 NMSA 1978 et seq.
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law. The bracketed reference to "Subsection B" in Subsection C was inserted as that appears to be the intended reference.
Administrative rule-making proceedings.
— Where plaintiffs filed a complaint for a declaratory judgment to enjoin the environmental improvement board from holding fact-finding hearings on a proposal to regulate greenhouse emissions on the grounds that the board lacked statutory authority to consider the proposal, the question of whether the board's rule-making actions exceeded its legislative authority was not ripe for judicial review, because no final rule-making action had occurred and there was not an actual controversy.
New Energy Econ., Inc. v. Shoobridge
, 2010-NMSC-049, 149 N.M. 42, 243 P.3d 746.
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.
Board not authorized to plan industrial development.
— There is nothing in the board's mandate that gives it the authority to plan for the industrial development of any area in the state; although the standards and regulations promulgated by the board will have an impact on the industrial development of the area, such an impact should be as a consequence, not by design.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Board not authorized to set standards more restrictive than federal regulations.
— There is no authority given to the board to promulgate regulations more restrictive than those under federal law in order for New Mexico to regain control over its air.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Substantial evidence required basis of administrative regulations.
— An administrative board in making its determinations may give greater credence to some evidence rather than to some other, and it is not a court's function to substitute its opinion for that of the administrative board, but this is in situations where there is a difference or a conflict in the evidence, not a complete absence of evidence.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
There is no substantial evidence in the record to support one of the board's final reasons for adopting amended regulations as to sulfur dioxide emissions, namely, because of their effects on visibility, since by definition sulfur dioxide in a gaseous form is a heavy colorless nonflammable gas of pungent suffocating odor, and whether sulfur dioxide emissions can or do combine with other elements in the atmosphere to produce a visible gas, or whatever, is not shown in the record.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Formal findings not required.
— In adopting regulations, administrative agencies must give some indication of their reasoning and of the basis upon which the regulations are adopted in order for the courts to be able to perform their reviewing function, but formal findings in a judicial sense are not required, and where each of 12 reasons listed for adopting regulations is based upon evidence and testimony accumulated at several hearings, it is held that the environmental improvement board has given sufficient indication of its reasoning and of the basis upon which it adopts its regulations.
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 bound by its standards.
— The board, in promulgating an ambient air quality standard, establishes the criterion for determining what concentration or quantity of sulfur dioxide in the specified time periods constitutes air pollution; it makes the judgment that concentrations over the quantity prescribed would injure health, interfere with visibility and adversely affect the public welfare. Having set the standard, it is bound by it, the same as anyone else.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Modification authorized to explain standard and to prevent pollution.
— The board has the continuing authority to change the ambient air quality standard for sulfur dioxide after proper notice and hearing and to adopt regulations to implement or explain it, but it may not set a new standard or adopt regulations implementing or explaining it for any reason other than to prevent or abate air pollution.
Public Serv. Co. v. N.M. Envtl. Improvement Bd.
, 1976-NMCA-039, 89 N.M. 223, 549 P.2d 638.
Adequate notice of hearing.
— Notice of meeting at which regulations are to be adopted mailed to numerous individuals, committees and organizations, and issued in a news release stating time, place and purpose of meeting and published in two newspapers is adequate.
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.
Failure to preserve an error at a public hearing
does not defeat a person's right to appeal the validity of a regulation adopted at that 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.
Relief for a lay person is justified in an appeal,
notwithstanding the failure to raise legal or factual issues at the 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.
When a board adopts a regulation, which, when applied, leads to an unfavorable result to any "person," that "person" can appeal to the court of appeals to challenge the validity of the regulation. This "person" may be an ordinary lay person, unlearned in the law and procedural process.
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.
Company's right to appeal liquid waste disposal regulations.
— Section 74-1-9H NMSA 1978 gives any person who is or may be affected by a regulation adopted by the environmental improvement board a right of appeal to the court of appeals, and a company is such a person where it maintains two septic systems, each with capacities within the reach of the liquid waste disposal regulations adopted pursuant to 74-1-8A(3) NMSA 1978.
Climax Chem. Co. v. N.M. Envtl. Improvement Bd.
, 1987-NMCA-065, 106 N.M. 14, 738 P.2d 132.
No hearing on minor corrections to regulation.
— This section does not require the board to provide public notice and a hearing merely to make minor, nonsubstantive corrections to regulations after hearing but prior to filing. 1987 Op. Att'y Gen. No. 87-59.
Rules and regulations for radiation protection.
— The environmental improvement board is authorized to promulgate rules and regulations for radiation protection without the radiation technical advisory council approving the terms of such rules and regulations, if the board promulgates regulations pursuant to the Medical Radiation Health and Safety Act [now Medical Imaging and Radiation Therapy Health and Safety Act, Chapter 61, Article 14E NMSA 1978]; but the board may not do so without the council's approval if the regulations are promulgated pursuant to the Radiation Protection Act (Chapter 74, Article 3 NMSA 1978). 1988 Op. Att'y Gen. No. 88-39.
Religious groups are excluded from the definition of "food service establishments".
— The environmental improvement board (board) is charged with executing the provisions of the Food Service Sanitation Act (act), 25-1-1 to 25-1-15 NMSA 1978, the purpose of which is to protect the public health by establishing standards and provisions for the regulation of food service establishments and by appropriate delegations of authority to the board and the New Mexico environment department to adopt and enforce regulations covering the environmental health aspects of food service establishments to assure that consumers are not exposed to adverse environmental health conditions arising out of the operations of food service establishments; in accordance with the act, the board adopted and incorporated, with certain limited modifications, the Food Code, a model code and reference document for state, city, county and tribal agencies that regulates food service operations and establishes practical, science-based guidance for mitigating risk factors that are known to cause or contribute to foodborne illness outbreaks associated with retail and foodservice establishments. Among the modifications to the Food Code, the board excluded from the definition of "food service establishment", religious groups and other charitable organizations, and therefore the environment department does not have jurisdiction to enforce the Food Code against churches conducting temporary events such as a rummage sale or a bake sale, provided the goods do not require time or temperature control for safety and are prepared in a private home kitchen for sale or service at a fundraising function.
Application of the 2013 Food Code to Church Bake Sales
(1/17/18), Att'y Gen. Adv. Ltr. 2018-02.
Law reviews.
— For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M.L. Rev. 105 (1973).
For comment, "Delegation of Legislative Authority on the State Level; Environmental Protection in New Mexico: Public Service Co. of New Mexico et al. v. N.M. Environmental Improvement Board," see 17 Nat. Resources J. 521 (1977).
For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 61A Am. Jur. 2d Pollution Control § 4.
39A C.J.S. Health and Environment §§ 138, 142, 145.