Communities for Clean Water v. N.M. Water Quality Control Comm'n ( 2018 )

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:58:08 2018.03.21
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2018-NMCA-024
Filing Date: December 27, 2017
Docket No. A-1-CA-35253
COMMUNITIES FOR CLEAN WATER,
Appellant,
v.
NEW MEXICO WATER QUALITY
CONTROL COMMISSION,
Appellee,
and
NEW MEXICO ENVIRONMENT
DEPARTMENT and LOS ALAMOS
NATIONAL SECURITY, LLC.,
Intervenors.
ADMINISTRATIVE APPEAL FROM THE NEW MEXICO WATER QUALITY
CONTROL COMMISSION
Jeffrey N. Holappa, Hearing Officer
New Mexico Environmental Law Center
Jaimie Park
Jonathan Block
Eric Jantz
Douglas Meiklejohn
Santa Fe, NM
for Appellant
New Mexico Water Quality Control Commission
Special Assistant Attorney General
Christopher Atencio, Assistant General Counsel
Albuquerque, NM
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for Appellee
New Mexico Environment Department
Special Assistant Attorney General
John Verheul, Assistant General Counsel
Albuquerque, NM
for Intervenor N.M. Environment Department
Montgomery & Andrews, P.A.
Louis W. Rose
Kari E. Olson
Santa Fe, NM
Office of Laboratory Counsel
Los Alamos National Laboratory
Timothy A. Dolan
for Intervenor Los Alamos National Security, LLC
OPINION
VARGAS, Judge.
{1} Communities for Clean Water (CCW) describes itself as a growing network of
organizations whose mission is to ensure that “community waters which receive adverse
impacts from [Los Alamos National Labs], its current operations and its legacy waste, are
kept safe for drinking, agriculture, sacred ceremonies, and a sustainable future.” CCW
appeals from the final order of the Water Quality Control Commission (WQCC) sustaining
the decision of the New Mexico Environment Department (NMED) to deny CCW’s request
for a public hearing on the water discharge permit application of the United States
Department of Energy (DOE) and Los Alamos National Security, LLC (LANS)
(collectively, DOE/LANS). Specifically, the parties disagree as to whether NMED has
discretion to deny its request for a public hearing, and if so, whether CCW established a
substantial public interest in the permit application, mandating a public hearing under the
Water Quality Act (the Act), NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through
2013), and its corresponding regulations. We hold that while NMED has limited discretion
to grant or deny a public hearing, the WQCC lacked substantial evidence to support its
decision to sustain NMED’s denial of CCW’s request for a public hearing. We reverse.
BACKGROUND
{2} In December 2011, DOE/LANS applied for a discharge permit with the Ground
Water Quality Bureau (Bureau) of NMED. Following an amendment in January 2014, the
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application became “administratively complete” under 20.6.2.3108 NMAC in December
2014. NMED issued a draft permit and proposed approval on January 22, 2015. In response
to the proposed approval, DOE/LANS submitted comments on the draft permit and
requested a hearing, expressing a hope that any concerns could be “resolved in advance of
a public hearing” in which case it intended to “immediately withdraw the hearing request.”
{3} CCW submitted its comments and requested a public hearing on March 2, 2015. On
April 15, 2015, CCW, NMED, and DOE/LANS met to discuss the permit, after which CCW
again requested a public hearing and submitted further comments.
{4} In May 2015, the Bureau issued a final draft of the permit. DOE/LANS submitted
additional comments on the final draft. In response to the final draft of the permit, CCW
again submitted substantive comments to the Bureau and submitted its third request for a
public hearing in June 2015.
{5} Upon receipt of CCW’s third request, the Bureau sent a memorandum to its Water
Protection Division on July 8, 2015, recommending that CCW’s requests for a public hearing
be denied. The next day, DOE/LANS withdrew its request for public hearing. Two weeks
later, NMED informed CCW by letter dated July 24, 2015, that its request for a hearing was
denied. NMED explained that the secretary of NMED (secretary) had denied the request for
a public hearing because the permit, as drafted, already contemplated community
involvement and was in the public interest, stating:
It is the opinion of the Department that NMED has drafted a Discharge
Permit that provides transparency and opportunity for community
involvement at an unprecedented level. The proposed activity by LANL is
intended to address historic impacts to groundwater and protect water
resources and communities, and issuance of this Discharge Permit is in the
public interest.
Three weeks later, on July 27, 2015, NMED issued the permit.
{6} CCW appealed the denial of its public hearing request and approval of the permit to
the WQCC. Following a hearing on CCW’s appeal, the WQCC sustained NMED’s decision
to deny CCW’s request for a public hearing in a nine-to-two vote. The WQCC issued a final
order pursuant to Section 74-6-5(Q) and 20.1.3.16(F)(3) NMAC, setting out its findings of
fact and conclusions of law. It is CCW’s appeal of the WQCC’s decision that we now
consider.
STANDARD OF REVIEW
{7} A decision of the WQCC will not be disturbed by this Court unless it acts in a
manner that is: “(1) arbitrary, capricious or an abuse of discretion; (2) not supported by
substantial evidence in the record; or (3) otherwise not in accordance with law.” Section 74-
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6-7(B). “A ruling that is not in accordance with law should be reversed if the agency
unreasonably or unlawfully misinterprets or misapplies the law.” N.M. Mining Ass’n v. N.M.
Water Quality Control Comm’n, 2007-NMCA-010, ¶ 11, 141 N.M. 41, 150 P.3d 991
(internal quotation marks and citation omitted). However, in considering whether the
WQCC’s actions were in accordance with the law, we note that interpretation of a statute is
a matter of law that this Court reviews de novo, and we are not bound by NMED’s or
WQCC’s interpretation of the relevant statutes. See id. (citing Rio Grande Chapter of the
Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806).
DISCUSSION
{8} Initially, we note that our review does not include a review of the merits of the
permit. Instead, we limit our review to the procedures employed by NMED to grant the
permit and whether they were implemented in accordance with the applicable statutes and
regulations.
{9} The parties’ arguments focus on the discretion of the secretary to deny a request for
a public hearing on a draft permit under the Act and its promulgated regulations. While
Section 74-6-5(G) (the statute) appears on its face to provide for a public hearing, stating,
“[n]o ruling shall be made on any application for a permit without opportunity for a public
hearing at which all interested persons shall be given a reasonable chance to submit
evidence, data, views or arguments orally or in writing and to examine witnesses testifying
at the hearing,” 20.6.2.3108(K) NMAC (the regulation) promulgated to effectuate the statute
appears to limit the availability of a hearing to instances where a hearing is requested and
the secretary finds a substantial public interest in the permit application. The regulation
states,
Requests for a hearing shall be in writing and shall set forth the reasons why
a hearing should be held. A public hearing shall be held if the secretary
determines there is substantial public interest.
20.6.2.3108(K) NMAC; see also 20.6.2.7(PP) NMAC (identifying the regulation’s
references to “the secretary” as references to the secretary of NMED).
The Act and WQCC Regulations
{10} In its passage of the Act, the Legislature gave the WQCC, as New Mexico’s water
pollution control agency, the responsibility of creating and implementing regulations aimed
at preventing water pollution. See § 74-6-1; § 74-6-3; § 74-6-4. The Act requires the WQCC
to adopt regulations governing the application for, public notice of, and the granting of,
water quality permits. See § 74-6-5(D) (“After regulations have been adopted for a particular
industry, permits for facilities in that industry shall be subject to conditions contained in the
regulations.”); Section 74-6-5(F) (“The commission shall by regulation develop procedures
that ensure that the public . . . shall receive notice of each application for issuance, renewal
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or modification of a permit.”); Section 74-6-5(J) (granting the commission authority to
impose conditions upon permits by regulation). Utilizing these powers, the WQCC
promulgated regulations governing the NMED’s duties to provide notice of permit
applications to the public and established the circumstances under which members of the
public are entitled to a public hearing on a permit application. See 20.6.2.3108 NMAC
(setting out public notice and participation requirements). Specifically, the regulations
promulgated by the WQCC provide for a public hearing on a permit application only after
receipt of a written request setting out the reasons a hearing should be held and a
determination by the secretary that a substantial public interest exists. See 20.6.2.3108(K)
NMAC.
{11} The regulations promulgated by the WQCC provide that once the two regulatory
prerequisites to a public hearing are satisfied, the hearing on a proposed discharge permit is
intended to be conducted as a “fair and impartial adjudication of issues” in front of a hearing
officer, who is tasked with assuring that “the facts are fully elicited[.]” 20.6.2.3110(E)
NMAC. During a public hearing, the permit applicant presents testimony and undergoes
examination in order to “prov[e] the facts relied upon . . . justify the proposed discharge
plan, . . . and meet[] the requirements of the regulations[.]” 20.6.2.3110(G)(1) NMAC. All
technical witnesses—both supporting or opposing issuance of the permit—then present
testimony and are subject to examination, after which the general public may testify, and the
permit applicant may present rebuttal testimony. See 20.6.2.3110(G)(2)-(4) NMAC. During
the hearing, “all persons shall be given a reasonable chance to submit data, views or
arguments orally or in writing and to examine witnesses testifying at the hearing.”
20.6.2.3110(F) NMAC. “[T]he hearing officer may allow proposed findings of fact and
conclusions of law and closing argument.” 20.6.2.3110(I) NMAC. The hearing officer must
then issue a report, which is available for public inspection, and presented to the secretary,
who then issues a decision on the matter. See 20.6.2.3110(K), (L) NMAC.
{12} Once those proceedings have concluded, a person who participated in the permitting
action and is adversely affected by the grant, denial, termination, or modification of a permit
may file a petition for review before the WQCC. See § 74-6-5(N), (O). Upon receipt of a
timely written petition that details the issues to be raised and relief sought, the WQCC must
hold a review proceeding. See § 74-6-5(O), (P). The WQCC is required to give public
“notice of the date, time and place for the review” proceeding. Section 74-6-5(P). If, prior
to the review proceeding, “a party shows to the satisfaction of the [WQCC] that there was
no reasonable opportunity to submit comment or evidence on an issue being challenged,”
the WQCC is required to order that NMED take additional comment or evidence. Section
74-5-6(R). As part of review proceedings, the WQCC reviews the record compiled before
NMED, including the transcript of any public hearing, and must allow “any party to submit
arguments.” Section 74-6-5(Q). The WQCC then enters findings of fact and conclusions of
law sustaining, modifying, or reversing NMED’s actions, “[b]ased on [its] review of the
evidence, the arguments of the parties and recommendations of the hearing officer[.]”
Section 74-6-5(Q).
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Opportunity for a Public Hearing
{13} The parties agree that the statute precludes NMED from ruling on a permit
application until interested parties are given an “opportunity for a public hearing[.]” Section
74-6-5(G). They disagree, however, on the meaning of the phrase “opportunity for a public
hearing.” Specifically, the parties disagree as to whether the opportunity for a public hearing
mandates a hearing or gives the secretary discretion to deny a request for a public hearing.
{14} When construing a statute, “a reviewing court’s central concern is to determine and
give effect to the intent of the [L]egislature.” Public Serv. Co. of N.M. v. N.M. Pub. Util.
Comm’n, 1999-NMSC-040, ¶ 18, 128 N.M. 309, 992 P.2d 860 (internal quotation marks and
citation omitted). Courts traditionally follow three canons of construction. First, “[t]he plain
language of a statute is the primary indicator of legislative intent.” Id. (internal quotation
marks and citation omitted); DeMichele v. N.M. Taxation & Revenue Dep’t, 2015-NMCA-
095, ¶ 14, 356 P.3d 523 (“The plain meaning rule presumes that the words in a statutory
provision have been used according to their plain, natural, and usual signification and
import, and the courts are not at liberty to disregard the plain meaning of words in order to
search for some other conjectured intent.” (omission, internal quotation marks, and citation
omitted)). Second, words carry their ordinary meaning unless it is clear the Legislature
meant otherwise. See id. Third, we do not read into a statute language that is not there,
“especially when it makes sense as it is written.” Id. (internal quotation marks and citation
omitted). We must construe the entire statute so that all provisions are considered in relation
to one another. See Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 35, 333
P.3d 947; N.M. Mining Ass’n, 2007-NMCA-010, ¶ 12. Furthermore, regulations in the New
Mexico Administrative Code are interpreted using the same rules applied in statutory
interpretation. Carrillo v. My Way Holdings, LLC, 2017-NMCA-024, ¶ 22, 389 P.3d 1087.
Finally, while rules, regulations, and standards enacted by an agency are presumed valid if
they are reasonably consistent with the authorizing statutes, id., “the administrative agency’s
discretion may not justify altering, modifying, or extending the reach of a law created by the
Legislature.” State ex rel. Stapleton v. Skandera, 2015-NMCA-044, ¶ 8, 346 P.3d 1191
(alterations, internal quotation marks, and citation omitted).
The Secretary Has Discretion to Hold a Hearing Under Section 74-6-5
{15} The provisions of the Act evidence the Legislature’s intent to include the public in
the permit application, issuance, and implementation process. The Act is replete with
opportunities for public participation, evidencing the Legislature’s intent that the public
actively participate in protecting New Mexico’s ground and surface water from pollution.
See § 74-6-5 (calling for public notice and public participation throughout the permitting
process); Section 74-6-6(A) (requiring a public hearing prior to the adoption, amendment,
or repeal of regulations and water quality standards); Section 74-6-4(H) (requiring a public
hearing prior to granting variance); Section 74-6-15(A) (making records, reports, and
information obtained by the WQCC or NMED pursuant to the Act “generally available to
the public”); Section 74-6-10(G) (allowing for a public hearing in compliance order context).
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It is with this legislative intent to provide for robust public participation throughout the
permitting process in mind, that we interpret the language of Section 74-6-5(G). See State
ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352 (stating
that statutes should be interpreted to achieve the Legislature’s purpose).
{16} The language of the statute provides no clues as to the Legislature’s intended
meaning of the phrase, “opportunity for a public hearing.” Rather than consider the meaning
of the term “opportunity for a public hearing,” in isolation, however, we consider the statute
in its entirety. See State ex rel. People’s Bank & Tr. Co. of Las Vegas v. York, 1918-NMSC-
118, ¶ 6, 24 N.M. 643, 175 P. 769 (“In the construction of a statute, in order to determine the
true intention of the Legislature, the particular clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the statute must be
considered in fixing the meaning of any of its parts.” (internal quotation marks and citation
omitted)).
{17} CCW argues that the WQCC and NMED incorrectly interpreted the regulation in
such a way that the regulation conflicts with the statute. Specifically, CCW argues that,
under the statute, the secretary has no discretion to refuse a request for public hearing on a
discharge permit application and NMED’s denial of its hearing request was not in
accordance with the law. Alternatively, CCW argues that if NMED had discretion to refuse
a public hearing request, that discretion is limited to circumstances where there was no
substantial public interest, which CCW claims was not the case in this instance. In response,
LANS and the WQCC argue that the discretion given to the secretary in 20.6.2.3108(K)
NMAC does not conflict with Section 74-6-5(G) because requiring an “opportunity for a
public hearing” is not a guarantee that a hearing will take place and that the regulation’s
substantial public interest standard was properly applied in denying CCW’s request.
{18} While CCW contends that a public hearing is mandatory under the plain meaning of
the statute, LANS argues that “opportunity” connotes possibility, rather than certainty.
Further, the WQCC points out that while other sections of the Act use words like “shall” to
evidence the Legislature’s clear intent that a public hearing is mandatory, Section 74-6-5(G)
contains no such compulsory language. Instead, the WQCC contends Section 74-6-5(G)
places the decision of whether to hold a hearing within NMED’s discretion. Measuring
Section 74-6-5(G)’s language against language used elsewhere in the Act, we agree with the
WQCC that the Legislature’s plain language indicates an intent to grant some degree of
discretion as to whether to hold a public hearing. Indeed, elsewhere in the Act, the
Legislature makes absolutely clear that a hearing is required, specifying that the WQCC
“shall conduct a public hearing” within a certain time frame after receiving a request. See
§ 74-6-10(G); see also § 74-6-5(P) (stating the WQCC “shall consider the petition within
ninety days after receipt of the petition”). By comparison, the Legislature’s election to
provide an “opportunity” for a hearing, rather than a mandate, suggests that a hearing is not
always required.
{19} LANS points to similar provisions within the Federal Clean Water Act and
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accompanying Environmental Protection Agency (EPA) regulations and urges us to follow
federal law when interpreting our statute and the accompanying regulation. Just as the Act
requires that interested persons be given an “opportunity for a public hearing,” Section 74-6-
5(G), the Federal Clean Water Act provides that “the Administrator may, after opportunity
for public hearing issue a permit for the discharge of any pollutant[.]” 33 U.S.C. §1342(a)(1)
(2012). The companion federal regulation provides that the “Director shall hold a public
hearing whenever he or she finds, on the basis of requests, a significant degree of public
interest in a draft permit[.]” 40 C.F.R. §124.12(a)(1) (2012); see also 40 C.F.R. 124.2(a)
(2012) (defining “Director” as the regional administrator of an EPA regional office, chief
administrative officer of a state agency, or tribal director).
{20} The United States Supreme Court interpreted the Federal Clean Water Act’s
requirement for an “opportunity for public hearing” and its accompanying EPA regulations
in Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980). In Costle, the Supreme Court
considered whether the Federal Clean Water Act required the EPA to conduct a hearing
before modifying a permit to extend its expiration date when notice of the proposed
modification was given, but no one submitted comments or requested a hearing. Costle, 445
U.S. at 213. The EPA issued a final determination extending the expiration date of the permit
without holding a hearing, Costle, 445 U.S. at 205-209, arguing that it was “entitled to
condition the availability of a public hearing . . . on the filing of a proper request.” Id. at 213.
The Court explained that the relevant regulations “were designed to implement the statutory
command that permits be issued after opportunity for public hearing[,]” id. at 214 (internal
quotation marks and citation omitted), and noted that it had previously held that “a similar
statutory requirement that an ‘opportunity’ for a hearing be provided may be keyed to a
request for a hearing.” Id. (citing Nat’l Indep. Coal Operators’ Ass’n v. Kleppe, 423 U.S.
388, 398-99 (1976). Balancing the fact that a rule requiring hearings on all agency permitting
actions, “would raise serious questions about the EPA’s ability to administer the [permit]
program[,]” Costle, 445 U.S. at 215, with the clear legislative history of “congressional
desire that the public have input in decisions concerning the elimination of water
pollution[,]” id., the Court held “that the regulations the EPA has promulgated to implement
this congressional policy are fully consistent with the legislative purpose, and are valid.”
Costle, 445 U.S. at 216.
{21} The Court also expressed disagreement with the lower court’s interpretation of the
statute that, according to the Court, rendered the EPA regulation “essentially meaningless”
by requiring the EPA to prove the material facts of the action, notwithstanding that they were
not subject to dispute. Costle, 445 U.S. at 214. Instead, the Court pointed with approval, to
past decisions in which similar agency rules “required an applicant who seeks a hearing to
meet a threshold burden of tendering evidence suggesting the need for a hearing.” Id. (citing
Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973)). In Weinberger,
the United States Supreme Court considered similar language found in the Federal Food,
Drug, and Cosmetic Act (FDCA) related to the withdrawal of a new drug application (NDA).
The FDCA “requires [the] FDA to give ‘due notice and opportunity for hearing to the
applicant’ before it can withdraw its approval of an NDA.” Weinberger, 412 U.S. at 620
8
(emphasis added) (internal quotation marks and citation omitted). In furtherance of its
obligation to provide notice and an opportunity for hearing on NDAs, the FDA promulgated
regulations related to the instances in which an opportunity for a hearing would be provided
under the FDCA. Weinberger, 412 U.S. at 620-21. To be entitled to a hearing, according to
the FDA regulations, applicants must meet a threshold showing that includes evidence that,
on its face, meets the statutory standards, as particularized by the regulations. Weinberger,
412 U.S. at 620. Noting that applicants have “full and precise notice of the evidence they
must present to sustain their NDA’s,” the Court held that the regulations were
“unexceptionable on any statutory or constitutional ground.” Weinberger, 412 U.S. at 622.
The Court, quoting from Federal Power Commission v. Texaco, 377 U.S. 33, 39 (1964),
noted, “[T]he statutory requirement for a hearing . . . does not preclude the Commission from
particularizing statutory standards through the rulemaking process and barring at the
threshold those who neither measure up to them nor show reasons why in the public interest
the rule should be waived.” Weinberger, 412 U.S. at 620.
{22} After examining the plain language of the statute in relationship to the rest of the Act
and considering the United States Supreme Court’s interpretation of similar language, we
are persuaded that the Legislature intended to confer limited discretion on the secretary to
determine whether a hearing should be held on a permit application under the Act. We now
consider the scope of that discretion.
Scope of Secretary’s Discretion
{23} The regulation contains two threshold requirements that must be satisfied before a
party is entitled to a public hearing on a permit application. First, a party must submit a
request in writing, setting forth the reasons a hearing should be held. 20.6.2.3108(K) NMAC.
We note that the parties have voiced no quarrel with the regulatory requirement that a
request for hearing must be written and must set out the reason why the hearing should be
held, and we hold that the plain language of the statute does not preclude the secretary from
requiring that a party submit such a written request. See Costle, 445 U.S. at 214
(acknowledging that a party’s opportunity for public hearing “may be keyed to a request for
a hearing”).
{24} The regulation further requires that, before a party is entitled to a public hearing, the
secretary must determine there is a substantial public interest in the matters that are the
subject of the permit application. 20.6.2.3108(K) NMAC. The WQCC issued conclusions
of law as part of its final order, concluding that the secretary had properly considered the
public interest in denying CCW’s request for a hearing on the permit. We now consider
whether those conclusions were supported by substantial evidence.
{25} The regulation fails to define “substantial public interest” and fails to set out any
particularized standards the secretary should consider in deciding whether a party requesting
a hearing has satisfied this requirement. See Weinberger, 412 U.S. at 620 (citing Texaco, 377
U.S. at 39). Both CCW and NMED argue that a determination of substantial public interest
9
is a substantive, or qualitative, inquiry. CCW argues that the WQCC abused its discretion
in upholding the secretary’s denial of its hearing request because the secretary’s decision that
there was no substantial public interest in the permit is not supported by substantial evidence
in the record. Pointing to Republican Party of New Mexico v. New Mexico Taxation &
Revenue Department, 2012-NMSC-026, ¶ 10, 283 P.3d 853 (stating “substantial public
interest,” as an issue of “public importance”), CCW contends that something is of substantial
public interest when the issues raised are substantive, are of considerable size, weight, and
importance, address the “essentials of the matter at issue,” and are real and tangible. Both
LANS and the WQCC argue that CCW failed to demonstrate a substantial public interest,
and the secretary therefore acted within his discretion to deny CCW’s request for public
hearing. NMED suggests that the reference to “substantial” encompasses the “quality of the
concerns that are raised” while “public” refers to anyone “not part of the government.” We
need not determine the meaning of substantial public interest or define what factors make
up a substantial public interest determination under the regulation because we hold the
factors cited by the WQCC to uphold the secretary’s denial of a hearing have no bearing on
any such analysis and that the WQCC’s decision to affirm the secretary’s denial of CCW’s
hearing request was not supported by substantial evidence.
WQCC’s Decision
{26} In denying CCW’s request for a hearing on the permit, the WQCC took note of three
factors. First, the WQCC noted that the issues for public hearing were raised by a “sole
participant whose concerns had been repeatedly addressed by the Bureau, DOE and LANS
throughout the permitting process.” Second, the WQCC commented that the permit “will
allow DOE to begin to remediate [a] contaminated groundwater plume within the boundaries
of LANL [, and d]elaying the remediation of contaminated groundwater could therefore be
harmful to both public health and the environment.” Finally, the WQCC pointed out that
CCW “never challenged the merits of [the permit].” Based on these three factors, WQCC
determined that, “[t]he totality of the evidence contained in the record sufficiently supports
the conclusion that the [s]ecretary properly determined any remaining concerns of that sole
participant failed to rise to the level of substantial public interest.” We address each of these
factors in turn.
{27} With regard to WQCC’s finding that CCW was a sole participant whose concerns
were addressed, our concern is two-fold. We initially question the relevance of WQCC’s
characterization of CCW’s request as a challenge by a “sole participant” in light of the
parties’ agreement that “substantial public interest” is a qualitative analysis, not a
quantitative one. However, even if “substantial public interest” were to be a quantitative
analysis, the WQCC’s characterization of CCW as a “sole participant” seems contrary to its
acknowledgment that CCW is a coalition of six organizations, including Concerned Citizens
for Nuclear Safety, Amigos Bravos, Honor our Pueblo Existence, the New Mexico Acequia
Association, the Partnership for Earth Spirituality, and Tewa Women United. As such,
WQCC’s finding of a “sole participant” is not supported by the evidence.
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{28} Further, the WQCC’s rationale that the request for hearing was made by a participant,
“whose concerns had been repeatedly addressed by the Bureau, DOE and LANS,” lends little
support to its conclusion that CCW failed to show a substantial public interest in light of the
legislative intent in favor of broad public participation in the permitting process. In its final
order, the WQCC reasoned that the Bureau’s “substantive responses” to CCW’s concerns
were effective in diminishing the level of public interest in the permit application. NMED’s
ability to provide substantive responses to CCW’s concerns stands completely separate from
a consideration of whether those concerns demonstrated a substantial public interest. Indeed,
nothing in the statute or regulations suggests that NMED may ameliorate concerns regarding
a permit through private meetings in lieu of a properly requested public hearing, particularly
if a party has demonstrated a substantial public interest.
{29} Through its three requests for public hearing, CCW raised procedural and substantive
issues involving the permit application, including the calculation and application of
discharge limits, the basis for treatment standards, soil sampling requirements, the use and
impact of radioactive materials, and the definition and implementation of “work plans.”
CCW’s requests for public hearing, rather than state general objections or concerns, present
detailed articulations of reasons that CCW was dissatisfied with specific language and
calculations in, and omissions from the permit. The issues raised in CCW’s requests were
substantial enough to warrant a meeting on April 15, 2015, between CCW, NMED, and
DOE/LANS, during which the parties discussed concerns with and alterations to the permit,
and after which, the Bureau issued a revised draft permit. There is no recording or transcript
of the meeting in the record, and it does not appear that the general public was given notice
of this meeting or an opportunity to participate.
{30} The WQCC’s conclusion that CCW’s concerns were substantial enough to justify a
private meeting among the parties and revisions to the draft permit but not enough to require
a public hearing, is unpersuasive. A review of the public hearing standards, as set forth in
the statute and regulations, quickly reveals that a private meeting is not equivalent to a public
hearing. The public hearing is a persuasive proceeding, imposing the burden of persuasion
upon the permit applicant. The public hearing provides opponents to a permit application an
opportunity to present contrary evidence and testimony, to cross-examine expert witnesses,
to present their own expert testimony, to argue their objections to the permit, and to obtain
a decision based on the evidence. Public hearings are intended to give the public an
opportunity to challenge a permit application and create a record to appeal an adverse
decision. See § 74-6-5(O)-(Q). As review proceedings are based exclusively on the record
and arguments made at the public hearing, a party having shown the existence of a
substantial public interest in the permit application is dependent upon the public hearing to
make its record in support of any necessary appeal. See id.
{31} A private meeting followed by written responses to concerns where an opponent has
no opportunity to cross-examine witnesses, present its own experts and make a record for
appeal is not a substitute for a public hearing. Such closed-door proceedings are not only
insufficient to satisfy established standards for public hearings, but are contrary to the
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legislative intent behind a statute that favors public participation in the permitting process.
In light of the foregoing, the WQCC’s reasoning—suggesting that NMED’s response
expunged the substantial public interest that may have existed prior to the response—is
unpersuasive. We conclude the WQCC lacked substantial evidence to support its conclusion
that CCW failed to show a substantial public interest because its concerns were addressed
elsewhere throughout the permitting process.
{32} The WQCC’s second factor in denying CCW’s hearing request—that the delay
caused by requiring a public hearing could be harmful to public health and the
environment—also fails to support its decision to uphold the secretary’s denial of CCW’s
hearing request for lack of substantial public interest. Indeed, to deny a public hearing
because the public health and environment issues are so grave and immediate weighs in
favor of the existence of a substantial public interest. If anything, this factor supports a
conclusion that the public interest in the permit would be heightened, rather than lessened,
mandating the hearing under the regulation.
{33} WQCC’s final factor in upholding the secretary’s denial of CCW’s request for
hearing was that CCW’s failure to challenge the permit on its merits constituted a waiver of
its right to complain that it had wrongfully been denied a public hearing. On appeal, NMED
argues that CCW waived its right to challenge the secretary’s denial of public hearing for
two reasons. First, relying on the WQCC’s conclusion, NMED contends CCW waived its
right to appeal the hearing denial because it failed to challenge the permit on its merits. We
note, however, that CCW did make substantive challenges to the permit in its requests for
public hearing. Without the opportunity to present witnesses and cross-examine the
applicant’s witnesses at a public hearing, however, any attempt to challenge the permit on
its merits is of little value, as such a challenge is limited to the review of the record created
at the public hearing. See § 74-6-5(Q). Absent a public hearing, any challenge to the merits
of the permit could not be fully developed and is useless.
{34} Second, NMED claims that CCW forfeited its opportunity to object on the grounds
that it was denied the chance to develop a record because it did not avail itself of the “safety
valve” built into Section 74-6-5(R) that allows the WQCC to send a permit back to NMED
for “additional comment or evidence.” Id. Nothing in the language of the statute, however,
sets forth such a requirement. Absent language to suggest that the Legislature intended such
a result, we decline to adopt such a prohibitive approach or to make pursuit of that review
mandatory. See Pub. Serv. Co. of N.M., 1999-NMSC-040, ¶ 18 (acknowledging that we do
not read into a statute language which is not there, especially if it makes sense as written).
{35} The WQCC’s three stated factors for sustaining NMED’s denial of CCW’s request
for a public hearing fail to include an evaluation of factors relevant to a substantial public
interest. By contrast, CCW set out detailed explanations about its relevant concerns with the
permit, all of which were in the record before the WQCC. We therefore conclude that the
WQCC acted contrary to the evidence and thereby acted arbitrarily and capriciously when
it sustained the secretary’s denial of CCW’s request for a public hearing.
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{36} The WQCC makes one final argument, contending that its interpretation, and
therefore implementation, of the statute and regulations should be entitled to deference. We
disagree. The scientific complexities of discharge permits may lie outside this Court’s
expertise, obligating deference to the agency’s expertise in the creation of and justification
for those standards. The protection of the adversarial process by which those complexities
are presented, challenged, and implemented, however, is well within this Court’s charge. See
Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17 (declining to defer to the
commission on matters of law).
CONCLUSION
{37} We reverse the WQCC’s decision sustaining NMED’s denial of CCW’s request for
public hearing, and we remand for further proceedings consistent with this opinion.
{38} IT IS SO ORDERED.
____________________________________
JULIE J. VARGAS, Judge
I CONCUR:
____________________________________
JONATHAN B. SUTIN, Judge
HENRY M. BOHNHOFF, Judge (specially concurring).
BOHNHOFF, Judge (specially concurring).
{39} I concur in reversing the Commission’s decision. However, I reach that result on
different grounds than those articulated by the majority.
{40} Section 74-6-5(G), provides: “No ruling shall be made on any application for a
permit without opportunity for a public hearing at which all interested persons shall be given
a reasonable chance to submit evidence, data, views or arguments orally or in writing and
to examine witnesses testifying at the hearing.” The decisive question is whether, so long as
a hearing is requested by an interested person, Section 74-6-5(G) allows the secretary to
exercise any discretion in deciding whether to hold one. I conclude that it does not. As used
in the statute, “opportunity for a public hearing” means that a hearing request is a predicate
or precondition to requiring the secretary to hold a hearing, but it does not authorize the
secretary to exercise any discretion to not hold a hearing for any other reason. (While the
secretary may have discretion to choose to hold a hearing even in the absence of a
request—a question we need not resolve—it would not be accurate to state that he or she has
discretion in granting a hearing where one is requested, because he or she has no choice in
the matter.).
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{41} The primary consideration in construing the statute is the plain meaning of
“opportunity for a public hearing.” See Cummings v. X-Ray Assocs. of N.M., P.C., 1996-
NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321 (“Our understanding of legislative intent
is based primarily on the language of the statute, and we will first consider and apply the
plain meaning of such language.”). Webster’s Third Int’l Dictionary (3d ed. 1976) defines
“opportunity” as “a combination of circumstances, time, and place suitable or favorable for
a particular activity or action” or “an advantageous circumstance or combination of
circumstances[.]” It distinguishes “opportunity” from “chance” and in that context explains
that “ ‘opportunity’ indicates a combination of circumstances facilitating a certain action or
inviting a certain decision[.]” Webster’s Third Int’l Dictionary, supra. While Intervenor
LANS suggests that “opportunity” means that there is only a chance: i.e., a possibility, of
a hearing, this construction misconstrues the word. The more reasonable construction of
“opportunity” as used in Section 74-6-5(G) is that a hearing will be held so long as an
interested party requests one. That is, the only “favorable circumstance” or predicate to
holding a hearing is the interested party’s request.
{42} As discussed by the majority, such a construction also is consistent with the overall
legislative intent or goal of encouraging public participation in permitting decisions.
{43} “Whenever possible, we must read different legislative enactments as harmonious
instead of as contradicting one another. . . . Statutes which relate to the same class of things
are considered to be in pari materia[.]” State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M.
391, 237 P.3d 693 (alterations, first omission, internal quotation marks, and citations
omitted). Carefully read, the other statutes that address public hearings in connection with
water quality regulation matters do not suggest that “opportunity for a public hearing” as that
term is used in Section 74-6-5(G) grants the secretary discretion to deny a hearing if one is
requested. First, Section 74-6-5(P) does not appear to contemplate a “hearing” at all, as
opposed to a meeting of the Commission—presumably the only or at least usual way it
acts—at which a petition to review a permitting decision will be considered. See id. (“If a
timely petition for review is made, the commission shall consider the petition[.] . . . The
commission shall notify the petitioner . . . by certified mail of the date, time and place of the
review.”). Second, Section 74-6-4(H) mandates a hearing on any application for a variance.
See id. (“[The commission] may grant an individual variance from any regulation[.] . . . The
commission shall adopt regulations specifying the procedure under which variances may be
sought, which regulations shall provide for the holding of a public hearing before any
variance may be granted[.]”). But this can be understood to mean simply that the Legislature
deems variances of sufficient importance to require a hearing even absent a request for one.
Without more, it does not support the conclusion that the different wording of Section 74-6-
5(G) connotes anything more than that the grant of a hearing on a permit application is
conditioned on a request. Third, Section 74-6-6(B) provides that “[a]ny person may petition
in writing to have the commission adopt, amend or repeal a regulation or water quality
standard. The commission shall determine whether to hold a hearing within ninety days of
submission of the petition.” This language suggests that, if the Legislature intends to give
an agency discretion in granting a hearing, it will so state expressly. Fourth, the structure and
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syntax of Section 74-6-10(G), would appear to be dictated by the need to make clear that a
compliance order will always become final unless a request is made, as well as by the intent
to afford the subject of the order an opportunity to be heard. See id. (“Any compliance order
issued by a constituent agency pursuant to this section [regarding compliance orders] shall
become final unless, no later than thirty days after the compliance order is served, any person
named in the compliance order submits a written request to the commission for a public
hearing. The commission shall conduct a public hearing within ninety days after receipt of
a request.”). A water quality permit is different—a permit is not automatically granted or
denied if a hearing request is not made—which explains the different wording of Section 74-
6-5(G). Thus, one cannot infer, on the basis of the difference in the language of Section 74-
6-5(G) as opposed to that found in these other provisions, an intent to give the secretary
discretion to deny a request for a permit hearing.
{44} The remaining argument for construing Section 74-6-5(G) to give the secretary
discretion to grant or deny a request for a permit hearing is that such discretion is authorized
by federal law. See Costle, 445 U.S. at 202-03 (construing federal Clean Water Act);
Weinberger, 412 U.S. at 620 (construing federal Food, Drug, and Cosmetic Act); Federal
Power Comm’n, 377 U.S. at 40. That proposition assumes that our Legislature considered
these federal models when it enacted Section 74-6-5(G) in 1973; however, we have no
information to that effect.
{45} Based on the foregoing, I interpret “opportunity for a public hearing” to mean that
one will be held if an interested person requests one. For that reason I concur in reversing
the WQCC’s decision.
____________________________________
HENRY M. BOHNHOFF, Judge
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