IAL 051908b.

• Case Date: May 19, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. IAL 051908b. May 19, 2008IAL 051908bThe Honorable Cisco McSorley New Mexico State Senator 3205 Berkeley Place NE Albuquerque, NM 87106 The Honorable Al Park New Mexico State Representative 1840 Dakota NE Albuquerque, NM 87110 Re: Opinion Request - Clandestine Drug Laboratories RulesDear Senator McSorley and Representative Park: You have requested our opinion regarding the New Mexico Environmental Improvement Board's ("Board") authority to promulgate regulations regarding the environmental remediation of illegal clandestine drug laboratories. It is our understanding that the Hazardous Waste Bureau of the New Mexico Environment Department ("Department") was the proponent of the regulations and offered the Hazardous Waste Act, Section 74-4-4, and Nuisance Abatement powers, Section 74-1-8, as legal authority for Board action. It is our understanding that the Board adopted the regulations in October 2007. Based on our examination of the relevant New Mexico statutes, opinions and case law authorities, and on the information available to us at this time, we conclude that the Hazardous Waste Act provides the Board with sufficient legal authority to promulgate the regulations. A board or commission must have statutory authority to promulgate regulations. The state Supreme Court has stated: "The authority of an administrative agency to `promulgate . . . regulations must be found in and is limited by statute.'" Howell v. Heim, 118 N.M. 504, 882 P.2d 541 (1994) (citations omitted). The Court of Appeals recently added: "[R]egulations . . . are presumptively valid and will be upheld if reasonably consistent with the authorizing statutes." See New Mexico Mining Ass'n v. New Mexico Water Quality Control Comm., 2007-NMCA-010, ¶ 12, 141 N.M. 41, 46. See also generally N.M. Petroleum Marketers Ass'n v. Environmental Improvement Board, 2007-NMCA-060, 141 N.M. 678 (Board has sufficient statutory authority to promulgate regulations regarding safety for convenience store employees). The New Mexico Hazardous Waste Act ("Act") grants the Board the authority to adopt regulations "concerning hazardous substance incidents." NMSA 1978, Section 74-4-4(B) (1993). The Act defines "hazardous substance incident" as "any emergency incident involving a chemical or chemicals, including but not limited to...