December 27, 2017- Communities for Clean Water v. New Mexico Water Quality Control Commission, No. A-1-CA-35253

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
12/27/2017 2:57:51 PM
Offiee of the Clerk

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1 | Le Reynolds

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2|| Opinion Number:

4 NO. A-1-CA-35253

5| COMMUNITIES FOR CLEAN WATER,

T\Iv.

8] NEW MEXICO WATER QUALITY
9] CONTROL COMMISSION,

10 Appellee,

L1}and

12]NEW MEXICO ENVIRONMENT
13} DEPARTMENT and LOS ALAMOS

14) NATIONAL SECURITY, LLC.,

15 Intervenors.

16] ADMINISTRATIVE APPEAL FROM THE NEW MEXICO WATER
17 QUALITY CONTROL COMMISSION .

18] Jeffrey N. Holappa, Hearing Officer

1]| New Mexico Environmental Law Center
2|| Jaimie Park

3 Jonathan Block

4! Eric Jantz

5|| Douglas Meiklejohn

6]| Santa Fe, NM

~

for Appellant

oo

New Mexico Water Quality Control Commission
Special Assistant Attorney General

10|| Christopher Atencio, Assistant General Counsel
11] Albuquerque, NM

\o

121 for Appellee

13|New Mexico Environment Department
14] Special Assistant Attorney General

15||John Verheul, Assistant General Counsel
161] Albuquerque, NM

17|| for Intervenor N.M. Environment Department

18] Montgomery & Andrews, P.A.
19 | Louis W. Rose

20|| Kari E. Olson

21\| Santa Fe, NM

22} Office of Laboratory Counsel
23||Los Alamos National Laboratory
24|| Timothy A. Dolan

25) for Intervenor Los Alamos National Security, LLC

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OPINION
VARGAS, Judge.

{1}, Communities for Clean Wa

r (CCW) describes itselfas 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 ifso, 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.

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BACKGROUND

{23 InDecember2011, DOE/LANS applied for a discharge permit with the Ground
Water Quality Bureau (Bureau) of NMED. Following an amendment in January 2014,
the application became “administratively complete” under 20.6.2.3108 NMAC in

December 2014. NMED issued a draft permit and proposed approval on January 22,

draft permit and requested a hearing, expressing a hope that any concerns could be

“resolved in advance ofa public hearing” in which case it intended to “immediately

33. 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,

{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 Bureat
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

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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

Tr aoessiisst

(secretary) had denied the request for a public hearing because the permit, as drafted,

al 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}.

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‘CW's an

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eal the WOCC sustained

14] NMED’s decision to deny CCW’s request for a public hearing in a nine-to-two vote.

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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 a
the WQCC’s decision that we now consider.

STANDARD OF REVIEW

{} 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 74-6-7(B). “A ruling that is not in accordance with law should be

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reversed if the agency unreasonably or unlawfully misinterprets or misapplies the

law.” N.M. Mining Ass’nv. N.M. Water Quality Control Comm’n, 2007-NMCA-010,

~ta2°%

Aa fie email mintatiags maces
q il d 991 (internal quotation marks and citation omitted).

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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

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novo, and we are not bound by NMED’s or WOCC’s interpretation of the re

A vws an ry G@aw AL

Comm’n, 2003-NMSC-005, 4 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

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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

i why a hearing should be held. A public hearing shall be held if the

rer thatantin alo n ietavnct
secretary determines there is substantial p puouic 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 Reg:
{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 a

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

17 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 or

modification of a permit.”); Section 74-6-5(J) (granting the commission authority to

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impos 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
y 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

{il} The regulations promulgated by the WQCC provide that once the two

regulatory prerequisites to a public hearing are satisfied, the hearing on a proposed

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

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upon ... justify the proposed discharge plan, . . . and meet{] the requirements of the

7\\regulations[.]” 20.6.2.3110(G)(1) NMAC. All technical witnesses—both supporting

18llor opposing issuance of the permit—then present testimony and are subject to

19} examination, after which the general public may testify, and the permit applicant may

1 present rebuttal testimony. See 20.6.2.3110(G)(2)-(4) NMAC. During the hearing,

2)\“all persons shall be given a reasonable chance to submit data, views or arguments
r in ting and to examine witnesses testifying at the hearing.”

4} 20.6.2.3110(F) NMAC. “[T]he hearing officer may allow proposed findings of fact

5\and conclusions of law and closing argument.” 20.6.2.3110(1) NMAC. The hearing

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7ipresented to the secretary, who then issues a decision on the matter. See

81120.6.2.3110(K), (L) NMAC.

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10j|permitting action and is adversely affected by the grant, denial, termination, or

11}modification of a permit may file a petition for review before the WQCC. See
121§ 74-6-5(N), (O). Upon receipt of a timely written petition that details the issues to

13]be raised and relief sought, the WQCC must hold a review proceeding. See § 74-6-

14115(O), (P). The WQCC is required to give public “notice of the date, time and place
15||for the review” proceeding. Section 74-6-5(P

16|/party shows to the satisfaction of the [WQCC] that there was no reasonable

17}}opportunity to submit comment or evidence on an issue being challenged,” the
8] WQCC is required to order that NMED take additional comment or evidence. Section

19||74-5-6(R). As part of review proceedings, the WQCC reviews the record compiled
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1} before NMED, including the transcript of any public hearing, and must allow “any

2\|party to submit arguments.” Section 74-6-5(Q). The WQCC then enters findings of

2 fant ana nanal NAIANna nt lav ow. at ine As ?
JY LaQue anu conclusions Vi IAW SUOLAITINIE, Liivul

7} {13} The parties agree that the statute precludes NMED from ruling on a permit

8|| application until interested parties are given an “opportunity for a public hearing[.]”

Section 74-6- -5(G). They disagree, howeve

aeeey s otahaheae’ < petaaingd | awe Few weg wae

“opportunity for a public hearing.” Specifically, the parties disagree as to whether

11}/the opportunity for a public hearing mandates a hearing or gives the secretary

12} discretion to deny a request for a public hearing.

13143 | Whenconstruing a statute, “a reviewing court’s central concern is to determine

14||and give effect to the intent of the [L]egislature.” Public Serv. Co. of N.M. v. N.M.

15||Pub. Util. Comm’n, 1999-NMSC-040, ¥ 18, 128 N.M. 309, 992 P.2d 860 (internal

16|| quotation marks and citation omitted). Courts traditionally follow three canons of

17||construction. First, “[t]he plain language of a statute is the primary indicator of

18}! legislative intent.” Jd. (internal quotation marks and citation omitted); DeMichele v.

19||N.M. Taxation & Revenue Dep’t, 2015-NMCA-095, J 14, 356 P.3d 523 (“The plain

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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 li
other conjectured intent.” (omission, internal quotation marks, and citation omitted)).

Second, words carry their ordinary meaning unless it is clear the Legislature meant

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“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,

Y - ~ 2iis Sells Sh WSs 2 ot . ar avi g me oo? afas waves

ne. vy. 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,
LIC, 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, J 8, 346 P.3d

1191 (alterations, internal quotation marks, and citation omitted).

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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
tion, 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 fram
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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

Section 74-6-15(A) (making records, reports, and information obtained by the WOCC

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). 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

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consider the statute in its entirety. See State ex rel. People’s Bank & Tr. Co. of Las

Vegas v. York, 1918-NMSC-118, 1 6, 24 N.M. 643, 175 P. 769 (“In the construction |

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

417; 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 CC W’s request.

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18} While CCW contends that a public hearing is mandatory under the plain
meaning of the statute, LANS argues that “opportunity” connotes possibility, rather
certainty. Further, the WOQCC points out that while other sections of the Act use

p
words like “shail” 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 orant some decree of diecretion as ta whether to
Lr Oo f=) AEE WERE BRAwWRSY UY ee Rhee BA basalt — eteatind Ref de WES WEAWILE CO OW VV SSW ELAW UL
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

16 | always required.

{193 LAWNS points to similar provisions within the Federal Clean Water Act and

accompanying Environmental Protection Agency (EPA) regulations and urges us to

19|| follow federal law when interpreting our statute and the accompanying regulation.

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1)|Just as the Act requires that interested persons be given an “opportunity for a public

2\|hearing,” Section 74-6-5(G), the Federal Clean Water Act provides that “the

t may, afier opportunity for public hearing issue a permit for the

4| discharge of any pollutant[.]” 33 U.S.C. §1342(a)(1) (2012). The companion federal

5|jregulation provides that the “Director shall hold a public hearing whenever he or she

7}permit[.]” 40 C.F.R. §124.12(a)(1) (2012); see also 40 C.F.R. 124.2(a) (2012)

8} (defining “Director” as the regional administrator of an EPA regional office, chief

Ke)

administrative officer of a st

eee = beteteeel a ITECUOT}.

10}|{20} |The United States Supreme Court interpreted the Federal Clean Water Act’s

11}requirement for an “opportunity for public hearing” and its accompanying EPA

ton, 445 U.!

me ah

tn

founda

12'regulations in Costle v. Pacific Legal ». 198 (1980). In Costle, the

131|Supreme Court considered whether the Federal Clean Water Act required the EPA to
14] conduct a hearing before modifying a permit to extend its expiration date when notice
15llof the proposed modification was given, but no one submitted comments or requested
16a hearing. Costle, 445 U.S. at 213. The EPA issued a final determination extending
17|the expiration date of the permit without holding a hearing, Costle, 445 U.S. at 205-

18209, arguing that it was “entitled to condition the availability of a public

19|/hearing ... on the filing of a proper request.” Jd. at 213. The Court explained that the

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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 aitatinen newnitted 2nd ented thant {4 bed eeeecst ach: Gall thant Cn alent lane ptateetaene
GLI CLA GITUILLOU J, ald TlULOd Liat It dG Pre ViOUsly Ola Widt @ oliiillar slatulory
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’nv. Kleppe, 423 U.S. 388,
302.00 (1074) Ralanrine the fa
wi FW SF Viren LFUL! pest

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

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.” Jd. (citing Weinberger v.

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Flynson, 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 A ed 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.”

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

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,

US. 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.” Weinbexger, 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

un

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1 | and barring at the threshold those who neither measure up to them nor show reasons

2}| why in the public interest the rule should be waived.” Weinberger, 412 U.S. at 620.

4|the Act and considering the United States Supreme Court’s interpretation of similar

5) language, we are persuaded that the Legislature intended to confer limited discretion

6llon the secretary
Oon the secretary

oO

to
7|| application under the Act. We now consider the scope of that discretion.
8||Scope of Secretary’s Discretion

91] 923} he
10| before a party is entitled to a public hearing on a permit application. First, a party
11})must submit a request in writing, setting forth the reasons a hearing should be held.
12120.6.2.3108(K) NMAC. We note that the parties have voiced no quarrel with the
13}\regulatory requirement that a request for hearing must be written and must set out the
14reason why the hearing should be held, and we hold that the plain language of the
15{|statute does not preclude the secretary from requiring that a party submit such a
16] written request. See Costle, 445 U.S. at214 (acknowledging that a party’s opportunity
17|| for public hearing “may be keyed to a request for a hearing”).

18] {243 The regulation further requires that, before a party is entitled to a public

19|/hearing, the secretary must determine there is a substantial public interest in the

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matters that are the subject of the permit application. 20.6.2.3108(K) NMAC. The

i WQCC issued conclusions of law as part of its final order, concluding that the

eS)

Ter nami Anand tha «1: ir
| secretary had properly considered the public i

4||a hearing on the permit. We now consider whether those conclusions were supported
5 | by substantial evidence.
6}25) The regulation fails to define “substantial public interest” and fails to set out

7} any particularized standards the secretary should consider in deciding whether a party

ios]

| requesting a hearing has satisfied this requirement. See Weinberger, 412 U.S. at 620

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7 AH = oe eee Te See ke SY el to net

(citing Texaco, 377 U.S. at 39). Both CCW and NMED argue tha

o substantial public interest is a substantive, or qualitative, inquiry. CCW argues that
‘| the WQCC abused its discretion in upholding the secretary’s denial of its hearing
12||request because the secretary’: s decision that there was no substantial public interest
7 in the permit is not supported by substantial evidence in the record. Pointing to
14} Republican Party of New Mexico v. New Mexico Taxation & Revenue Department,
15 | 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
17} interest when the issues raised are substantive, are of considerable size, weight, and
18 | importance, address the “essentials of the matter at issue,” and are real and tangible.

19}, Both LANS and the WQCC argue that CCW failed to demonstrate a substantial

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1} public interest, and the secretary therefore acted within his discretion to deny CCW’s

2j\request for public hearing. NMED suggests that the reference to “substantial”

~

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4lanyone “not part of the government.” We need not determine the meaning of

5|| substantial public interest or define what factors make up a substantial public interest

61 dete:
7|| to uphold the secretary’s denial ofa hearing have no bearing on any such analysis and
8||that the WQCC’s decision to affirm the secretary’s denial of CCW’s hearing request
9|| was not supported by substantial evidence.
10] WQCC’s Decision
11 | 26; In denying CCW’s request for a hearing on the permit, the WQCC took note
12}|of three factors. First, the WQCC noted that the issues for public hearing were raised
13}| by a “sole participant whose concerns had been repeatedly addressed by the Bureau,
14/1 DOE and LANS throughout the permitting process.” Second, the WQCC commented
15)|that the permit “will allow DOE to begin to remediate [a] contaminated groundwater
16}plume within the boundaries of LANL [, and djelaying the remediation of
17! contaminated groundwater could therefore be harmful to both public health and the

18] environment.” Finally, the WQCC pointed out that CCW “never challenged the merits

191 of [the permit].” Based on these three factors, WQCC determined that, “[t]he totality

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1}! 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

Les)

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rice th the lavel
to rise to the level

turn.

27 With regard to WQCC’s finding that CCW was a sole participant whose

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 intere:
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

14| for Earth Spirituality, and Tewa Women United. As such, WQCC’s finding of a “sole

pour

5||participant” is not supported by the evidence.

16] (28; Further, the WQCC’s rationale that the request for hearing was made by a
17}| participant, “whose concerns had been repeatedly addressed by the Bureau, DOE and
18 LANS,” lends little support to its conclusion that CCW failed to show a substantial

19} public interest in light of the legislative intent in favor of broad public participation

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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

responses to CCW’s concerns stands completely separate from a consideration of

whether those concerns demonstrated a substantial public interest. Indeed, nothing

a permit through private meetings in lieu of a properly requested public hearing,

particularly if a party has demonstrated a substantial public interest.

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

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meeting in the record, and it does not appear that the general public was given notice

of this meeting or an opportunity to participate.

atecstt nl -.- --- 1
tial cnougn 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

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

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

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.

81} <A private meeting followed by written responses to concerns where an

opponent has no opportunity to cross-examine witnesses, present its own experts and

21

fae a record for appeal is not a substitute for a public hearing. Such closed-door

2||proceedings are not only insufficient to satisfy established standards for public

4|participation in the permitting process. In light of the foregoing, the WQCC’s

5|\reasoning—suggesting that NMED’s response expunged the substantial public
6 interest that may have existed prior to the response—is unpersuasive. We conclude

7\ithe WQCC lacked substantial evidence to support its conclusion that CCW failed to

8}|show a substantial public interest because its concerns were addressed elsewhere

9 | throughout the permitting process.

10} 323 The WQCC’ssecond factor in denying CCW’s hearing request—that the delay
I1};caused by requiring a public hearing could be harmful to public health and the
12||environment—also fails to support its decision to uphold the secretary’s denial of
13 CCW’s hearing request for lack of substantial public interest. Indeed, to deny a public
14} hearing because the public health and environment issues are so grave and immediate
15]| weighs in favor of the existence ofa substantial public interest. Ifanything, this factor
16|}supports a conclusion that the public interest in the permit would be heightened,
17|rather than lessened, mandating the hearing under the regulation.

18]| 33} WQCC’s final factor in upholding the secretary’s denial of CCW’s request for

19\ hearing was that CCW’s failure to challenge the permit on its merits constituted a

22

1

waiver of its right to complain that it had wrongfully been denied a public hearing.

2}On appeal, NMED argues that CCW waived its right to challenge the secretary’s

ad

fu.

cD
3

4 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

opportunity to present witnesses and cross-examine the applicant’s witnesses at a

o

public hearing, however, any attempt to challenge the permit on its merits is of little

k=)

value, as such a challenge is limited to the review of the rec

—
©

ee a ee en ee ee

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.

12114343 Second, NMED claims that CCW forfeited its opportunity to object on the

13}}grounds that it was denied the chance to develop a record because it did not avail

14} itself of the “safety valve” built into Section 74-6-5(R) that allows the WQCC to send

15||a permit back to NMED for “additional-comment or evidence.” Jd. Nothing in the

16] language of the statute, however, sets forth such a requirement. Absent language to

-17|suggest that the Legislature intended such a result, we decline to adopt such a

18] prohibitive approach or to make pursuit of that review mandatory. See Pub. Serv. Co.

ann I et
»

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of N.M., 1999-NMSC-040, 4 18 (acknowledging that we do not read into a statute

language which is not there, especially if it makes sense as written).

$351 he WOCC's three ctated factare for cnetainine NMBT)’.e denial af CCW'’s
wey BSW TN OS OUEAE EME LEW LU BUolasiiE ANLVALYSY DO UMUwlilGs VE Ww TF
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 be
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.

{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).

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CONCLUSION
87} Wereverse 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 ISSO ORDERED.

WE J. ch lla
ai

Pel Wwe?

JONATHAN & SUTIN, Judge

HENRY M. BOHNHOFF, Judge (specially concurring).

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BOHNHOFF, Judge (specially concurring).

39} I concur in reversing the Commission’s decision. However, I reach that result

{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

" 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.).

{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, 4 44, 121 N.M. 821, 918 P.2d 1321 (“Our understanding of

26

iesaiv intent is based primarily on the language of the statute, and we will first

2\\consider and apply the plain meaning of such language.”). Webster’s Third Int’l

it

6) defines “opportunity” as “a combination of circumstances,

4

time, and place suitable or favorable for a particular activity or action” or “an

5jadvantageous circumstance or combination of circumstances[.]” It distinguishes

at

aii in that CONTEXT wAPLA

N
g
~]
i)
:
3
=
af

indicates a combination of circumstances facilitating a certain action or inviting a

8] certain decision[.]” Webster’s Third Int’l Dictionary, supra. While Intervenor LANS

Olli suggests that “opportunity” means that there is only a chance: i.e.

ULECEL rE wi thli iit So Se aly A a was wed

,
10) hearing, this construction misconstrues the word. The more reasonable construction
11} of “opportunity” as used in Section 74-6-5(G) is that a hearing will be held so long
12{as an interested party requests one. That is, the only “favorable circumstance” or
13} predicate to holding a hearing is the interested party’s request.

14}| 4423 As discussed by the majority, such a construction also is consistent with the
15|joverall legislative intent or goal of encouraging public participation in permitting
16|| decisions,

17] t433 “Whenever possible, we must read different legislative enactments as

18} harmonious instead of as contradicting one another. . . . Statutes which relate to the

19|same class of things are considered to be in pari materia[.]” State v. Tafoya, 2010-

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NMSC-019, 7 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

euclhlia lbanasciann
public hearing,

sin esen ei __ eat

n 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-

A.SfPY dinae nant annase ta nantamniata a “haaring” at all aa annnaad ta a maatinag nf
elk J BU LIVE GPa LY VULILULILPIAGle A LIV ld atlall, apn VU PYoeU WW a IIVULIE Vi
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

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

or a variance. See id. (“[The con

sion] may grant an individual variance from an

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

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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

ctandasA Tha a taatae oiall J wn ten varhhathas ¢
Sslanladrd. Le COMMUNISSION Sali GCrermme wWhemer t

)
)
q
q
,
ms

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.

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

nnorhinityv n he ear: oOo id (“Any camnitance arner ieqned hv a conctitient
vErrw- wWLssd J ew Ww SEW tee Wee FU \ a MAy Wid Pistiivw WAL Je wy BS WV EAL EWES
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 ifa 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.

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{444 Theremaining 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

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.

|. DP,
Nh TRY

HENRY M. BOHNHOFF, Judge

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