2023 New Mexico Statutes › Chapter 74 - Environmental Improvement › Article 4 - Hazardous Wastes › Section 74-4-4.3 - Entry; availability of records.

A. For purposes of developing or assisting in the development of any rules, conducting any study, taking any corrective action or enforcing the provisions of the Hazardous Waste Act, upon request of the secretary or his authorized representative:
(1) any person who generates, stores, treats, transports, disposes of or otherwise handles or has handled hazardous wastes shall furnish information relating to such hazardous wastes and permit the secretary or his authorized representatives:
(a) to enter at reasonable times any establishment or other place maintained by any person where hazardous wastes are or have been generated, stored, treated, disposed of or transported from or where a storage tank is located; and
(b) to inspect and obtain samples from any person of any hazardous wastes and samples of any containers or labeling for the wastes; and
(2) any person who owns or operates a storage tank, or any tank subject to study under Section 9009 of the [federal] Resource Conservation and Recovery Act of 1976 that is used for storing regulated substances, shall furnish information relating to such tanks, including their associated equipment and their contents, conduct monitoring or testing, permit the secretary or his authorized representative at all reasonable times to have access to and to copy all records relating to such tanks and permit the secretary or his authorized representative to have access for corrective action. For the purposes of developing or assisting in the development of any rule, conducting any study, taking corrective action or enforcing the provisions of the Hazardous Waste Act, the secretary or his authorized representative is authorized to:
(a) enter at reasonable times any establishment or other place where a storage tank is located;
(b) inspect or obtain samples from any person of any regulated substance in such tank;
(c) conduct monitoring or testing of the tanks, associated equipment, contents or surrounding soils, air, surface water or ground water; and
(d) take corrective action.
B. Any person owning property to which access is necessary in order to investigate or clean up a facility where hazardous waste is generated, stored, treated or disposed of, or where storage tanks are located, shall:
(1) permit the secretary or his authorized representative to obtain samples of soil or ground water, or both, at reasonable times; and
(2) provide access to such property for structures or equipment necessary to monitoring or cleanup of hazardous wastes or leaking from storage tanks; provided that:
(a) such structures or equipment do not unreasonably interfere with the owner's use of the property; or
(b) the owner is adequately compensated for activities that unreasonably interfere with his use or enjoyment of such property.
C. Each inspection shall be commenced and completed with reasonable promptness. If the secretary or his representative obtains any samples, prior to leaving the premises he shall give to the owner, operator or agent in charge a receipt describing the sample obtained and, if requested, a portion of each sample equal in volume or weight to the portion retained. If any analysis is made of the samples, a copy of the results of the analysis shall be furnished promptly to the owner, operator or agent in charge.
D. Any records, reports or information obtained by the department under this section shall be available to the public, except that upon a showing satisfactory to the department that records, reports or information, or a particular part thereof, to which the secretary or his authorized representatives have access under this section, if made public, would divulge information entitled to protection under Section 1905 of Title 18 of the United States Code, such information or particular portion thereof shall be considered confidential, except that such record, report, document or information may be disclosed to officers, employees or authorized representatives of the United States concerned with carrying out the Resource Conservation and Recovery Act of 1976, or when relevant in any proceedings under the Hazardous Waste Act.
E. Any person not subject to the provisions of Section 1905 of Title 18 of the United States Code who knowingly and willfully divulges or discloses any information entitled to protection under this subsection shall, upon conviction, be subject to a fine of not more than five thousand dollars ($5,000) or to imprisonment not to exceed one year or both.
F. In submitting data under the Hazardous Waste Act, a person required to provide such data may:
(1) designate the data the person believes is entitled to protection under this subsection; and
(2) submit such designated data separately from other data submitted under the Hazardous Waste Act. A designation under this paragraph shall be made in writing and in such manner as the secretary may prescribe.
History:
1978 Comp., § 74-4-4.3, enacted by Laws 1981 (1st S.S.), ch. 8, § 7; 1987, ch. 179, § 5; 1989, ch. 322, § 5; 2001, ch. 325, § 4.
ANNOTATIONS
Bracketed material.
— The bracketed word "federal" was inserted by the compiler and it is not part of the law.
Cross references.
— For the Resource Conservation and Recovery Act,
see
42 U.S.C.S. § 6901 et seq. For Section 9009 of that act,
see
42 U.S.C. § 6991h.
For Section 1905 of Title 18 of the United States Code,
see
the Trade Secrets Act.
The 2001 amendment,
effective July 1, 2001, substituted "secretary" for "director" throughout the section; deleted "underground" preceding "storage tank" and "storage tanks" throughout the section; substituted "department" for "division" in Subsection D; and made stylistic changes.
Areas subject to inspection.
— Regardless of whether each specific part of the premises is subject to regulation, the statute clearly allows an inspection of all areas where the hazardous waste is being generated, whether it is in an enclosed facility or not.
N.M. Envtl. Improvement Div. v. Climax Chem. Co.
, 1986-NMCA-137, 105 N.M. 439, 733 P.2d 1322, cert. denied, 105 N.M. 421, 733 P.2d 869.
Search warrant required in absence of consent.
— In the event consent to enter and inspect premises for compliance with this article is denied, an administrative search warrant is required.
N.M. Envtl. Improvement Div. v. Climax Chem. Co.
, 1986-NMCA-137, 105 N.M. 439, 733 P.2d 1322, cert. denied, 105 N.M. 421, 733 P.2d 869.
Venue in action for search warrant.
— An action by which the environmental improvement division sought an administrative warrant for inspection under this article was a transitory action and venue was controlled by 38-3-1A NMSA 1978, which allows an action to be brought in a county where the plaintiff resides.
N.M. Envtl. Improvement Div. v. Climax Chem. Co.
, 1986-NMCA-137, 105 N.M. 439, 733 P.2d 1322, cert. denied, 105 N.M. 421, 733 P.2d 869.
No conversion or trespass by private contractor.
— Where private contractor acted pursuant to a valid administrative search and seizure warrant, the affidavits supporting the application for the warrant set forth probable cause for issuance of the warrant, and the New Mexico Hazardous Waste Act permitted seizure of hazardous waste, there was no conversion or trespass by the private contractor.
Eden v. Voss
, 105 Fed. Appx. 234 (10th Cir. 2004).