The department shall have power to:

A. sue and be sued;

B. make contracts to carry out its delegated duties;

C. enter into agreements with environmental and consumer protection agencies of other states and the federal government pertaining to duties of the department;

D. enter into investigation and remediation agreements with persons potentially responsible for sites within New Mexico subject to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and such agreements shall not duplicate or take any authority from the oil conservation commission;

E. serve as agent of the state in matters of environmental management and consumer protection not expressly delegated by law to another department, commission or political subdivision in which the United States is a party;

F. enforce the rules, regulations and orders promulgated by the board and environmental management and consumer protection laws for which the department is responsible by appropriate action in courts of competent jurisdiction;

G. collect civil penalties pursuant to law, including reduction or elimination of penalties for violations from persons that:

(1) within sixty days of the discovery of a potential violation, voluntarily report to the department potential violations of law enforced by the department;

(2) initiate corrective action for the potential violation;

(3) have not previously violated the same provision of law; and

(4) do not present an imminent and substantial endangerment to health or the environment by the potential violation.

H. on the same basis as any other person, recommend and propose regulations for promulgation by the board;

I. on the same basis as any other person, present data, views or arguments and examine witnesses and otherwise participate at all hearings conducted by the board or any other administrative agency with responsibility in the areas of environmental management or consumer protection, but shall not be given any special status over any other party; and

J. have such other powers as may be necessary and appropriate for the exercise of the powers and duties delegated to the department.

History: 1953 Comp., § 12-19-9, enacted by Laws 1971, ch. 277, § 9; recompiled as 1953 Comp., § 12-12-9 by Laws 1972, ch. 51, § 9; 1977, ch. 253, § 35; 1982, ch. 73, § 22; 1991, ch. 25, § 30; 1994, ch. 124, § 1; 1997, ch. 139, § 6; 2009, ch. 42, § 1.

Cross references. — For definition of "department" and "board", see Section 74-1-3 NMSA 1978.

For creation of environmental improvement division, see Section 9-7-4 NMSA 1978.

For federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, see 42 U.S.C. § 9601 et seq.

The 2009 amendment, effective June 19, 2009, added Subsection G.

The 1997 amendment, effective June 20, 1997, substituted "department" for "agency" in the section heading and throughout the section.

The 1994 amendment, effective March 8, 1994, substituted "Agency" for "Department" in the section heading, substituted "agency" for "department" in the introductory paragraph, added Subsection D, and redesignated former Subsections D through H as Subsections E through I.

The 1991 amendment, effective March 29, 1991, substituted "Department" for "Agency" in the catchline; substituted "department" for "agency shall be organized within the health and environment department and" in the introductory phrase; and made a minor stylistic change in Subsection D.

Jurisdiction over pollution control. — Supreme court holds that action brought by attorney general and certain private citizens for injunction to abate alleged public nuisance caused by emissions from coal-burning power plant should have been dismissed in trial court since environmental improvement division has primary jurisdiction over pollution control and means are available to compel division to perform its duties, should it fail to do so. State ex rel. Norvell v. Ariz. Pub. Serv. Co., 1973-NMSC-051, 85 N.M. 165, 510 P.2d 98.

Agency (now department) is not given all-encompassing power to abate nuisances. Gonzalez v. Whitaker, 1982-NMCA-050, 97 N.M. 710, 643 P.2d 274, cert. denied, 98 N.M. 336, 648 P.2d 794.

Abating nuisance is within jurisdiction of courts. — It readily falls within the traditional jurisdiction of the court to enjoin, abate or impose damages for creation of a nuisance. Gonzalez v. Whitaker, 1982-NMCA-050, 97 N.M. 710, 643 P.2d 274, cert. denied, 98 N.M. 336, 648 P.2d 794.

Article does not prohibit or limit environmental improvement division [now department] from obtaining injunctive relief. Envtl. Improvement Div. v. Aguayo, 1983-NMSC-027, 99 N.M. 497, 660 P.2d 587.

Nature of agency. — The environmental improvement division [now department] is an environmental regulatory and enforcement agency in addition to being an environmental management agency. 1987 Op. Att'y Gen. No. 87-22.

Environmental improvement division (now department) has primary jurisdiction over pollution control. 1978 Op. Att'y Gen. No. 78-12.

Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M.L. Rev. 105 (1973).

For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983).

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 § 133.