July 11, 2014 – Southwest Research and Information Center and Margaret Elizabeth Richards v. New Mexico Environment Deparment: In the Matter of the Application for a Class 2 Modification for Shielded Containers for Remote-Handled Transuranic Waste at the Waste Isolation Pilot Plant, No. 32,499

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: July 11, 2014
NO. 32,499
SOUTHWEST RESEARCH AND
INFORMATION CENTER and
MARGARET ELIZABETH RICHARDS,
Plaintiffs-Appellants,
v.
NEW MEXICO ENVIRONMENT
DEPARTMENT,
Defendant-Appellee.
IN THE MATTER OF THE APPLICATION
FOR A CLASS 2 MODIFICATION FOR
SHIELDED CONTAINERS FOR REMOTE-
HANDLED TRANSURANIC WASTE AT THE
WASTE ISOLATION PILOT PLANT.
APPEAL FROM THE NEW MEXICO ENVIRONMENT DEPARTMENT
Dave Martin, Secretary
Lindsay A. Lovejoy, Jr.
Santa Fe, NM
for Appellants

New Mexico Environment Department
Charles de Saillan, Special Assistant Attorney General
Santa Fe, NM
for Appellee
Kenneth J. Gonzales, United States Attorney, District of New Mexico
Michael H. Hoses, Assistant United States Attorney
Albuquerque, NM
United States Department of Energy
Environment and Natural Resources Division
Robert G. Dreher, Acting Assistant Attorney General
Eileen T. McDonough, Environmental Defense Section
Washington, D.C.
for Intervenor United States Department of Energy

OPINION
SUTIN, Judge.
INTRODUCTORY COMMENTS
{1} 	This case was submitted to a panel of this Court in December 2013. As will be
discussed in detail in this Opinion that follows this preface, the appeal raised legal,
procedural questions related to the New Mexico Energy Department’s (NMED)
approval of a permit modification request to allow the WIPP site to accept waste in
a newly developed shielded container. As this Court was working toward issuance of
an opinion in this matter, news of the February 2014 fire and radiation leak at the
WIPP site led the Court to determine that prudence warranted postponing the issuance
of an opinion until more was known about the February 2014 incidents. 	In April
2014, we set a hearing for June 26, 2014, and ordered the parties to apprise the Court
of the impact of the recent developments, if any, on the issues before the Court in this
appeal. The hearing notice stated, in part:
The Court in particular requests the views of the parties as to
whether it should continue its analyses and deliberations at this time in
light of the uncertainty about what may or may not be required or
changed in the future in regard to operations and safety equipment that
may have some impact on the issues before the Court.

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Attorneys representing NMED, the federal Department of Energy (DOE), and
Southwest Research and Information Center (Southwest Research) presented their
respective views in the June 26, 2014, hearing.
{2} 	All parties agreed in the hearing that the WIPP site was closed and that it was
not possible to estimate, with any degree of certainty, when the site would open.
Southwest Research indicated that the site may never again be reopened given the
extent of the contamination of the site. 	Based on the facts known to date, the
extensive amount of investigation and analysis devoted to resolving the issues and the
amount of money being allocated by Congress for recovery and opening, NMED was
confident that the site would open at some point. DOE also expressed confidence that
the site would open, but likely not before 2015 or 2016.
{3} 	Southwest Research’s position at the hearing was that it was premature to make
a decision on the propriety of the shielded container-related modification given the
many uncertainties, including, without limitation, what caused the radiation leak,
whether a decision must be made to close WIPP permanently, whether, if WIPP is
opened at some point, the opening will be subject to material changes in drums or
shielded containers, in procedures for storage, and in infrastructure requiring a
redesign of the WIPP site and its functions. Southwest Research requested that this
Court remand the matter to NMED with instructions to revisit the approval of the

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shielded container-related permit modification request. 	In Southwest Research’s
view, remand would allow NMED to consider 	the propriety of the permit
modification in the context of any changes to WIPP that will likely be required as a
result of the February 2014 incidents before the facility may open.
{4} 	NMED and DOE shared a view that it was not likely that anything that arose
from the ongoing investigations and analyses of the February 2014 incidents would
impact the issues in the case before this Court. NMED and DOE indicated that there
was no reason to believe that changes relating to waste storage in the future, upon the
opening of the site would impact or affect the storage of shielded containers as
allowed in the present modification, and that all of the issues in the present appeal had
been fully aired before the NMED, and that, therefore, a decision from this Court was
warranted. 	Further, NMED and DOE expressed their desire for an opinion in the
present appeal in order to provide some certainty for planning purposes with respect
to the shielded containers in the context of developing plans to reopen the WIPP site.
NMED and DOE also gave assurances that if, during the continuing investigations and
analyses of the February 2014 incidents and issues arising out of those incidents, it
was determined that any changes required could have an impact on the storage of
shielded containers, NMED and DOE would address that as it arose and, if necessary,
vacate or amend the relevant permit modification.

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{5} 	This Court required the June 26, 2014, hearing because it was clear that the
February 2014 incidents and the ongoing extensive investigations and analyses were
a matter of important and ongoing public interest. After the discussions at the hearing,
the Court has determined to address the merits of the issues on appeal.
{6} 	In the Opinion that follows, we affirm NMED’s approval of the permit
modification request to allow WIPP to accept shielded containers. 	In issuing this
Opinion, we point to four important circumstances. 	First, when this case was
submitted to the Court, the February 2014 incidents had not yet occurred. The parties
have devoted considerable time and expense to this case, which involves issues that
may recur concerning the permit modification process. 	Second, other than the
uncertainty that will not be fully quelled until the numerous investigations into the
February 2014 incidents are complete and the conclusions reported, there is nothing
before the Court at this time indicating that there will be any changes at WIPP that
will impact the issues before this Court. The facts at this point do not indicate that
either the fire or the leak was in any way related to a shielded container or its storage
at the WIPP site. Third, based on the statements and representations of NMED and
DOE, implementation of changes at WIPP may require a permit modification or
modifications that may include necessary material changes concerning the storage of
shielded containers. 	Fourth, regardless, NMED has assured the Court that, as

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regulations require, it will address any changes that may impact the storage of
shielded containers, including whether the permit modification related to shielded
containers should be amended, suspended, or revoked.
MERITS
{7} 	Appellants Southwest Research and Information Center (Southwest Research)
and Margaret Elizabeth Richards appeal a decision by NMED to modify the operating
permit for the Waste Isolation Pilot Plant (WIPP or the facility). The modification
allows the addition of a shielded container to the facility that, in turn, will allow
remote-handled waste to be managed within WIPP under the protocols applicable to
contact-handled waste. At issue is whether the permit modification request complied
with the applicable regulations and whether NMED appropriately approved the
modification under Class 2 procedures that do not require a public hearing, rather than
Class 3 procedures that do require a public hearing. We affirm NMED’s decision.
BACKGROUND
General Information Regarding WIPP and the Permit
{8} 	WIPP is an underground repository for defense-related transuranic radioactive
waste (waste) near Carlsbad, New Mexico. 	WIPP was constructed and opened
pursuant to the Waste Isolation Pilot Plant Land Withdrawal Act of 1991, Pub. L. No.
102-579, 106 Stat. 4777 (1992), as amended by Pub. L. No. 104-201, 110 Stat. 2422

6
(1996). WIPP is federally owned and is operated by DOE and a private contractor,
Nuclear Waste Partnership LLC (collectively, the Permittees), pursuant to a permit
issued in 1999, and modified in 2006, by the Secretary of NMED.
{9} 	The permit is governed by the New Mexico Hazardous Waste Act, NMSA
1978, §§ 74-4-1 to -14 (1977, as amended through 2010), and the New Mexico
Hazardous Waste Management Regulations. See § 74-4-3(D), (F) (stating that, in the
context of the Hazardous Waste Act, “director” and “secretary” are synonyms
meaning the secretary of NMED and “division” or “department” means NMED); see
also 	NMSA 	1978, 	§ 	74-1-8(A)(13) 	(2000) 	(stating 	that 	the 	Environmental
Improvement Board shall adopt rules applicable to the management of hazardous
waste); § 74-4-4(A) (same); 20.4.1.1 to .3 NMAC (6/14/2000) (stating that the
hazardous waste management regulations applicable to the storage of hazardous waste
were adopted by the Environmental Improvement Board pursuant to the Board’s
statutory authority). Throughout this Opinion, we refer to the actions of the director
or the secretary as those of NMED. 	The Hazardous Waste Act comports with its
federal analog, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 to
6992k (2006), and therefore, NMED is authorized to administer and enforce the state

1 See Authorized State hazardous waste programs, 42 U.S.C. § 6926(b) (2006)
(authorizing a state to carry out a hazardous waste program in lieu of a federal
program provided that, among other things, the state program is equivalent to the
federal program); New Mexico; Decision on Final Authorization of State Hazardous
Waste Management Program, 50 Fed. Reg. 1515-01, 1515 (Jan. 11, 1985) (granting
New Mexico final authorization to operate its hazardous waste management program);
State of New Mexico: Final Authorization of State Hazardous Waste Management
Program, 55 Fed. Reg. 28,397-01, 28,397 (July 11, 1990) (granting New Mexico final
authorization to regulate the mixed waste component).
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hazardous waste management program under the Hazardous Waste Act in lieu of a
federal program.1
{10} 	Two categories of waste are stored at WIPP: contact-handled and remote-
handled. Contact-handled waste is that with a surface dose rate not greater than 200
millirems per hour, which can be handled manually without personnel protective
equipment. 	See Pub. L. No. 102-579, § 2(3), 106 Stat. at 4777 (defining contact-
handled waste). WIPP was permitted to and began receiving contact-handled waste
in 1999. Remote-handled waste is that with a surface dose rate of 200 millirems per
hour or greater, which must be handled remotely using machines. 	See Pub. L. No.
102-579, § 2(12), 106 Stat. at 4778 (defining remote-handled waste). 	WIPP was
permitted to receive remote-handled waste in 2006 and began receiving it in 2007.
Contact-handled waste is placed on the floor of the underground disposal rooms,
otherwise known as “panels,” and remote-handled waste is placed in boreholes in the
walls of the panels.

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{11} 	The permit limits the total amount of contact-handled and remote-handled waste
that can be disposed of at WIPP to 148,500 cubic meters of contact-handled waste and
2,635 cubic meters of remote-handled waste. The permit also limits the amount of
each type of waste that can be placed in WIPP’s eight respective panels.
{12} 	In March 2011, the United States Environmental Protection Agency (the EPA)
announced its decision to approve DOE’s request to place a portion of its remote-
handled waste in specially designed shielded containers on the floor of the disposal
rooms at WIPP rather than in the boreholes. By its letter, the EPA explained that once
remote-handled waste was properly loaded into the shielded containers, it may be
treated as contact-handled waste. The EPA explained that DOE’s request to use the
shielded containers was intended to “enhance the efficiency of facility operations[.]”
The EPA’s letter acknowledged, however, that DOE would “separately need a
hazardous waste permit modification from [NMED]” in order to implement its
proposed use of the shielded containers at WIPP.
Permit Modification Requests
{13} 	Permittees may submit permit modification requests to NMED, and the
secretary is charged with issuing a decision thereupon. 	See § 74-4-4.2(D), (G)(2)
(stating that “a permit may be modified at the request of the permittee” and that
decision is within the purview of the secretary). 	Depending on the nature of the

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intended modification, the modification request will be classified as Class 1, Class 2,
or Class 3. See Permit modification at the request of the permittee, 40 C.F.R. § 270.42
(2013); 20.4.1.900 NMAC (3/1/2009) (adopting 40 C.F.R Part 270); 20.4.1.901(B)(1)
NMAC (3/1/2009) (stating that the secretary may modify a permit pursuant to 40
C.F.R. Part 270). Each class of modification is subject to a specific set of procedures.
Class 1 modifications include “routine changes, such as changing typographical
errors, upgrading plans and records maintained by the facility, or replacing equipment
with functionally equivalent equipment.” Permit Modifications for Hazardous Waste
Management Facilities, 53 Fed. Reg. 37,912-01, 37,913 (Sept. 28, 1988). “Class 2
modifications address common or frequently occurring changes needed to maintain
a facility’s capability to manage wastes safely or to conform with new regulatory
requirements.” Id. “Class 3 modifications cover major changes that substantially alter
the facility or its operations.” Id. Class 1 and Class 2 modifications are considered
“minor permit modifications[.]” 	20.4.1.901(B)(6) NMAC. 	Class 2 and Class 3
modification procedures are relevant to this appeal.
{14} 	Class 	2 	modifications 	and 	Class 	3 	modifications 	have 	similar 	initial
requirements. See 40 C.F.R. § 270.42(b), (c). 	They both require the permittee to
submit a modification request describing the exact change to be made to the permit
conditions, identifying the class of the requested modification, explaining why the

10
modification is needed, and providing other materials required by regulations. See 40
C.F.R. § 270.42(b)(1), (c)(1). Likewise, among other things, they each require the
permittee to give public notice of the modification request that includes the
announcement of a sixty-day comment period and announcement of the date, time,
and place for a public meeting to be held within the comment period and in the
vicinity of the permitted facility. See 40 C.F.R. § 270.42(b)(2)-(5), (c)(2)-(5).
{15} 	Within ninety days of a Class 2 request, NMED must take one of five actions
on the modification request, that is, NMED, in relevant part, may (1) approve the
request (with or without changes), (2) deny the request, or (3) determine that the
request must follow the procedures for a Class 3 modification request. 	40 C.F.R.
§ 270.42(b)(6)(i)(A)-(C). The regulations enumerate the following bases upon which
NMED may deny or change the terms of a Class 2 permit modification request:
(1) “[t]he modification request is incomplete[,]” (2) “[t]he requested modification does
not comply with the appropriate . . . requirements[,]” or (3) “[t]he conditions of the
modification fail to protect human health and the environment.” 	40 C.F.R.
§ 270.42(b)(7). Likewise, the regulations enumerate the following bases upon which
NMED may determine that the Class 2 modification request must follow Class 3
procedures: “(1) [t]here is significant public concern about the proposed modification;
or (2) [t]he complex nature of the change requires the more extensive procedures of

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Class 3.” 	40 C.F.R. § 270.42(b)(6)(i)(C). 	In making a decision as to a Class 2
modification request, NMED is required to “consider all written comments submitted
to [NMED] during the public comment period and must respond in writing to all
significant comments in [the] decision.” 40 C.F.R. § 270.42(b)(6)(vi).
{16} 	Unlike Class 2 circumstances, in a Class 3 modification request, NMED must
give notice and opportunity for a public hearing. 	See § 74-4-4.2(H) (stating that
NMED may not rule upon a major modification request without an opportunity for a
public hearing); 20.4.1.901(F) NMAC (governing public hearings). A public hearing
is an adversarial proceeding held before a hearing officer. See 20.4.1.901(F) NMAC.
The public hearing must be held within the sixty-day comment period. See 40 C.F.R.
§ 270.42(c)(4); Public hearings, 40 C.F.R. § 124.12(c) (2000). “After the conclusion
of the [sixty]-day comment period, [NMED] must grant or deny the permit
modification request according to the permit modification procedures of 40 C.F.R.
Part 124[.]” 	40 C.F.R. § 270.42(c)(6). 	Additionally, in a Class 3 modification
request, NMED must “consider and respond to all significant written comments
received during the [sixty]-day comment period.” Id.
The September 2011 Modification Request
{17} 	On September 29, 2011, the Permittees submitted a Class 2 permit modification
request to NMED seeking to implement use of the shielded containers at WIPP. In

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an overview of the modification request, the Permittees described the requested
change, in relevant part, as one to add “a new gamma shielded container for managing
remote-handled . . . waste as contact[-]handled . . . waste since it meets the surface
dose rate of [contact-handled] . . . waste[.]” In response to the permit modification
request, Southwest Research and a number of members of the public responded by
sending letters to NMED expressing concern about the proposed use of shielded
containers and requesting that the modification be considered a Class 3 modification
request instead of a Class 2 modification request.
{18} 	By a December 22, 2011, letter, NMED notified the Permittees that it was
“appropriate for [NMED] to process the modification request as a Class 3 permit
modification” because there was substantial public concern about the requested
modification and because the complex nature of the changes required the more
extensive Class 3 procedures. But in a December 28, 2011, letter, NMED retracted
the December 22, 2011, letter and then, by a letter dated January 31, 2012, NMED
issued a decision in which, among other things, it denied the request to add provisions
for shielded containers. 	The denial, which will be discussed in greater detail as
necessary later in this Opinion, was based primarily on the deficiencies and “technical
inadequacies” in the modification request.

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The July 2012 Modification Request
{19} 	On July 5, 2012, the Permittees submitted a new Class 2 permit modification
request for the addition of the shielded containers. 	The modification request was
subject to a sixty-day public comment period that ran from July 12, 2012, through
September 10, 2012. 	The Permittees held public meetings on the proposed
modification on August 14 and 16, 2012. NMED received 206 comments from the
public, including one from Southwest Research; nearly all of the letters requested a
public hearing. By a “final determination” letter dated November 1, 2012, NMED
approved, with changes not at issue in this appeal, the requested Class 2 permit
modification. This appeal followed.
{20} 	Appellants raise eight points on appeal in support of two overarching
arguments. 	First, Appellants argue that, for a number of reasons, the permit
modification request did not comply with the applicable regulations, and therefore, it
could not lawfully be granted by NMED. Second, Appellants argue that approval was
improper under Class 2 procedures and should instead have been determined under
Class 3 procedures. DOE intervened and argues in support of NMED’s decision. We
conclude that Appellants’ arguments provide no basis for reversal and affirm NMED’s
approval of the permit modification.

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DISCUSSION
Standard of Review
{21} 	This Court may set aside the Secretary’s decision if it is arbitrary and capricious
or an abuse of discretion, not supported by substantial evidence, or otherwise not in
accordance with the law. 	Section 74-4-14(C). 	“The burden is on the parties
challenging the agency order to make this showing.” N.M. Attorney Gen. v. N.M. Pub.
Regulation Comm’n, 2013-NMSC-042, ¶ 9, 309 P.3d 89 (internal quotation marks
and citation omitted). 	In seven of their eight points, Appellants argue that the
Secretary’s decision was arbitrary and capricious. “A ruling by an administrative
agency is arbitrary and capricious if it is unreasonable or without a rational basis,
when viewed in light of the whole record.” 	Gila Res. Info. Project v. N.M. Water
Quality Control Comm’n, 2005-NMCA-139, ¶ 16, 138 N.M. 625, 124 P.3d 1164
(internal quotation marks and citation omitted). In their final point, Appellants argue
that NMED abused its discretion. 	“An agency . . . abuses its discretion when its
decision is contrary to logic and reason.” 	Oil Transp. Co. v. N.M. State Corp.
Comm’n, 1990-NMSC-072, ¶ 25, 110 N.M. 568, 798 P.2d 169. The appellate courts
generally accord deference to an agency’s determination of a factual matter within its
specialized expertise and do not substitute judgment for that of the agency. 	Plains

15
Elec. Generation & Transmission Coop., Inc. v. N.M. Pub. Util. Comm’n, 1998-
NMSC-038, ¶ 7, 126 N.M. 152, 967 P.2d 827.
I. 	Appellants’ 	Arguments 	Regarding 	the 	Modification 	Request’s
Compliance With the Applicable Regulations
{22} 	Appellants raise five points in support of their position that the modification
request did not meet the requirements of the applicable regulations. We consider each
in turn and conclude that none of the five points demonstrates a basis for reversal of
NMED’s decision.
A. 	The Need for the Proposed Modification
{23} 	Pursuant to 40 C.F.R. § 270.42(b)(1)(iii), a Class 2 modification request must
explain why the modification is needed. Although the Permittees provided a “need”
statement in their modification request, Appellants fault the Permittees for not having
honestly stated the need for the modification and fault NMED for not having
determined or recognized for itself what Appellants believe to be the unstated actual
need that the modification serves. Because NMED granted the modification request
notwithstanding the alleged deficiency in the need statement, Appellants request
reversal on the basis that NMED’s decision was arbitrary and capricious.
{24} 	In their modification request, the Permittees identified three reasons for the
need to add shielded containers as acceptable waste containers at WIPP. Summarized,
those reasons were (1) the need to accommodate generator sites’ use of shielded

2 Generator sites are places from which the waste originates; waste is originally
placed in containers at these sites.
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containers, (2) to increase the efficiency of the shipment of remote-handled waste, and
(3) to increase the efficiency with which remote-handled waste is managed, processed,
and handled at WIPP. According to the Permittees’ modification request, generator
sites 2 were turning to the use of shielded containers because the containers were
“expected to reduce the time and personnel necessary for the packaging of” remote-
handled waste at generator sites. 	Additionally, shipping remote-handled waste in
shielded containers would permit three times the amount of waste per shipment than
remote-handled waste in non-shielded containers. 	And, in terms of the waste
processing time, use of the shielded containers, which allow the remote-handled waste
to be handled as contact-handled waste, “is inherently less complex” than handling it
as remote-handled waste. Thus, for example, the Permittees explained that a pallet of
shielded containers “can be managed from unloading to disposal in about two hours
versus the eight to ten hours needed for” handling remote-handled waste in a non-
shielded container. The Permittees also stated that, in terms of the remote-handled
waste disposal limits, the remote-handled waste stored in the shielded containers
would be characterized as, and count against, the limits applicable to remote-handled
waste. 	NMED argues that the Permittees’ explanation of the need to use shielded

3 Panel 4 has a maximum capacity for 356 cubic meters of remote-handled
waste, but has a final waste volume of 176 cubic meters of remote-handled waste.
Panel 5 has a maximum capacity for 445 cubic meters of remote-handled waste, but
has a final waste volume of 235 cubic meters of remote-handled waste.
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containers at WIPP, which was certified to be “true, accurate, and complete,”
constituted substantial evidence supporting the need for modification.
{25} 	Appellants argue that, contrary to the reasons stated in the modification request,
the real and unstated reason that the Permittees needed the modification was to make
up for their earlier inefficient use of remote-handled storage capacity at WIPP.
Appellants argue that Permittees placed contact-handled waste in Panels 1 through 3
prior to their receipt of any remote-handled waste, which resulted in a lost opportunity
to place any remote-handled waste in boreholes in those panels because remote-
handled waste must be placed first. They also argue that Permittees underused the
borehole capacity in Panels 4 and 5 3 . 	Because shielded containers will allow
placement of remote-handled waste on panel floors, the real need to use them,
according to Appellants, stems from the lost capacity to store remote-handled waste
within the unused or underused boreholes of Panels 1 through 5.
{26} 	Appellants’ argument regarding an ulterior reason behind the Permittees’ need
for modifying the permit to allow the use of shielded containers is speculative and not
clearly supported by evidence in the record. At most, Appellants’ argument illustrates

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a possible advantage the Permittees will gain from using the shielded containers, but
we are not persuaded that it illuminates an ulterior motive by the Permittees for the
requested modification. NMED determined that the Permittees’ statement of need was
justified by the reasons stated, substantiated by data, and constituted an “adequate
statement” of the need. And Appellants have not demonstrated otherwise. See N.M.
Attorney Gen., 2013-NMSC-042, ¶ 9 (stating that the appellant bears the burden of
demonstrating reversible error in the agency’s decision).
{27} 	Appellants also argue that the use of shielded containers could violate the panel
limits on remote-handled waste. 	Appellants tie this argument to a separate
issue—whether the use of shielded containers will allow the Permittees to exceed the
permitted limit of remote-handled waste that may be stored at WIPP. 	Appellants
argue that NMED reverses itself in stating that the remote-handled waste limits do not
apply to remote-handled waste in shielded containers because those containers
constitute contact-handled waste. 	But Appellants’ argument confuses NMED’s
position regarding the limit of remote-handled waste that WIPP may receive with its
position regarding the management of remote-handled waste in shielded containers
by the Permittees.
{28} 	At the crux of this issue is the distinction between designating waste as remote-
handled or contact-handled for purposes of measuring the amount of waste stored at

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WIPP versus the waste designation for purposes of managing the waste once it is at
WIPP. On the one hand is the limit of remote-handled waste that is permitted to be
stored at WIPP. As noted earlier in this Opinion, WIPP is permitted to receive a total
of 2,635 cubic meters of remote-handled waste. According to the modified permit,
remote-handled waste that is placed in shielded containers will count against the
limited volume of remote-handled waste that may be stored at WIPP. Thus, the record
does not support Appellants’ view that the use of shielded containers provides a
loophole through which the Permittees can exceed the overall permitted volume of
remote-handled waste stored at WIPP.
{29} 	On the other hand is the management of waste within WIPP. Panels 4 through
8 are designated to store a limited amount of remote-handled and contact-handled
waste respectively. For purposes of management and storage within the facility, the
designation of waste as remote-handled versus contact-handled is, under the permit
and according to federal regulation, determined by the amount of surface radiation or
“surface dose rate.” 	See Pub. L. No. 102-579, § 2(3), 106 Stat. at 4777 (defining
contact-handled waste); Pub. L. No. 102-579, § 2(12), 106 Stat. at 4778 (defining
remote-handled waste). Thus, remote-handled waste within a shielded container with
a surface dose rate not greater than 200 millirems per hour can be managed by WIPP
as contact-handled waste. See Pub. L. No. 102-579, § 2(3), 106 Stat. at 4777 (stating

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that contact-handled waste is that with a surface dose rate not greater than 200
millirems per hour). 	In effect, this allows the Permittees to store remote-handled
waste within shielded containers on the floors of the panels within the panel limits
applicable to contact-handled waste. As explained by NMED, in response to public
comments, the limits applicable to each panel will remain unchanged. To the extent
that Appellants view the modification request as reflecting an underlying “need” or
intention to modify or eliminate remote-handled waste limits, Appellants’ view is
unsupported by the record and, therefore, is unpersuasive.
{30} 	In sum, NMED concluded that the Permittees adequately stated the need for the
modification. And Appellants have not demonstrated that NMED’s conclusion in that
regard was arbitrary and capricious. See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9
(stating that the appellant bears the burden of demonstrating reversible error in the
agency’s decision); Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (“A ruling by an
administrative agency is arbitrary and capricious if it is unreasonable or without a
rational basis, when viewed in light of the whole record.” (internal quotation marks
and citation omitted)). Therefore, this issue provides no basis for reversal.

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B. 	Enforcement of the Surface Dose Rate Limits
{31} 	Appellants argue that the modification request was deficient in that it failed to
show how the critical surface dose rate limit for shielded containers would be
maintained. On that basis, Appellants argue NMED acted arbitrarily and capriciously
under 40 C.F.R. § 270.42(b)(7)(iii) by approving a modification that fails to protect
human health and the environment. 	See id. (stating that “[NMED] may deny or
change the terms of a Class 2 permit modification” if “[t]he conditions of the
modification fail to protect human health and the environment”); Titus v. City of
Albuquerque, 2011-NMCA-038, ¶ 29, 149 N.M. 556, 252 P.3d 780 (recognizing that
use of the term “may” evokes discretion). Further, Appellants argue that NMED acted
contrary to 40 C.F.R. § 270.42(b)(6)(vi) by failing “to explain its reasoning in
declining to protect against an admitted risk.” 	See id. (stating that “[NMED] must
consider all written comments submitted to [NMED] during the public comment
period and must respond in writing to all significant comments in [the] decision”).
{32} 	Appellants assert that the surface dose rate for shielded containers will, on
average, be much closer to the 200-millirems-per-hour limit for usual contact-handled
waste drums and that the prospect of contents shifting during shipment of the waste
to WIPP creates a “serious likelihood” that the shielded containers will exceed that
limit. 	Appellants also assert that the EPA and DOE “recognize that shifting is a

22
serious risk.” In support of this argument, Appellants cite a portion of a final draft
report titled “Review of DOE Planned Change Request for Shielded Containers for
Remote-Handled . . . Waste.”
{33} 	The report, prepared for the EPA by an independent contractor, summarized the
contractor’s “technical review of the shielded container [planned change request].”
The report indicates that before the EPA would approve the use of shielded containers,
the 	United 	States 	Nuclear 	Regulatory 	Commission 	and 	the 	Department 	of
Transportation must approve the shipping container design, and a safety analysis must
be prepared by DOE. DOE was allowed, pursuant to applicable regulations, to “self-
certify that the shielded container [met] the [applicable] requirements[.]” 	DOE
demonstrated compliance with the requirements by conducting a series of “analyses,
tests, and evaluations performed on the shielded container to demonstrate” that the
packaging design met relevant requirements.
{34} 	Based on its review of DOE’s self-certification testing, the EPA submitted
several comments to DOE for clarification or resolution. 	The comments and
responses were detailed in the report prepared by the independent contractor.
Appellants’ argument that the EPA and DOE “recognize that shifting is a serious risk”
is based upon one such comment by the EPA.

23
{35} 	In response to a representation by DOE regarding a test used to determine
whether significant changes in radiation would result depending on the weight of a
particular shipment, the EPA raised two questions. First, the EPA asked why, if DOE
had determined that radiation levels did not vary depending on the weight of the
shipment, it did not expressly so state. Second, the EPA asked that DOE show where
it had addressed movement of point sources of radiation and what actions would have
to be taken to prevent such movement. 	In response to the EPA’s comment, DOE
stated, in relevant part, that “[i]t is the responsibility of the shipper to ensure that there
is adequate bracing within the . . . internal payload container such that the point
radiation source doesn’t move during transportation to cause a significant increase .
. . in the external radiation levels.” 	It further explained that specific loading
instructions were provided in a handling and operation manual, and the instructions
would be “revised to further instruct the shipper to securely fasten and position
contents . . . in a manner to prevent a significant increase in the level of radiation at
the external surface of the [shielded containers] as a result of movement during
transport.” Based on review of DOE’s “self-certification activities and responses to
EPA comments,” the independent contractor concluded that the relevant Department
of Transportation requirements were met.

24
{36} 	Subsequently, the EPA announced that it “propose[d] to allow the emplacement
of shielded container[s] . . . at WIPP, on the condition that, prior to shipping the
shielded containers to WIPP, DOE implement[ed] a consistent complex-wide
procedure to ensure that the shielded containers remain below the . . . 200 millirem[s]
per hour dose limit for contact-handled waste.” This condition was met, and the EPA
gave its final approval on August 8, 2011.
{37} 	NMED responded to public comments regarding shifting by noting that the
EPA’s final approval of the use of shielded containers was contingent upon DOE
addressing this concern. NMED also explained that shifting was not a serious concern
because DOE “generator sites are subject to packaging requirements to minimize any
shifting of wastes.” 	Generator sites’ shipping requirements include standards
requiring the use of specific containers and measurement devices before the waste is
placed within any container. 	Further, NMED argues DOE and its contractors are
responsible for adhering to federal regulations applicable to the shipment of waste.
Thus, NMED argues there are significant safeguards in place to minimize the risk of
shifting.
{38} 	Appellants’ citation to the EPA’s questions of DOE does not show that the
possibility of waste shifting led to an abuse of discretion due to a serious risk to
human health and the environment that should have led NMED to deny the permit

25
modification, and Appellants do not cite further evidence or authority in support of
that proposition. To the extent that the EPA had questions regarding the possibility
of waste shifting during transportation, its final approval of DOE’s use of shielded
containers indicates that the concern was adequately addressed. We will not assume,
without evidence to the contrary, that NMED abused its discretion by not requiring
safeguards over and above those applicable to DOE and its contractors in regard to the
transportation of shielded containers. In sum, we are unable to conclude that NMED
acted arbitrarily or capriciously under 40 C.F.R. § 270.42(b)(7)(iii). See Gila Res.
Info. Project, 2005-NMCA-139, ¶ 16 (stating the arbitrary and capricious standard);
Oil Transp. Co., 1990-NMSC-072, ¶ 25 (“An agency . . . abuses its discretion when
its decision is contrary to logic and reason.”). Therefore, Appellants’ argument in this
regard provides no basis for reversal.
C. 	The Permitted Height of Stacked Containers
{39} 	Appellants argue that NMED acted arbitrarily and capriciously under 40 C.F.R.
§ 270.42(b)(7)(iii) by not adequately restricting the stacking height of shielded
containers. See id. (granting NMED discretion to deny a modification request when
the requested modification“fail[s] to protect human health and the environment”). In
support of their argument, Appellants cite a phrase from the modification request in
which the Permittees stated that “[i]n order to meet the stacking stability requirements

26
. . ., shielded containers will not be stacked more than two high[.]” And they compare
that statement with the modified permit, which states, in relevant part, that
“[c]ontainers will be stacked in the best manner to provide stability for the stack
(which is up to three containers high) and to make best use of available space.”
According to Appellants, the parenthetical statement allowing containers to be stacked
“up to three containers high” fails to protect human health and the environment
because it allows Permittees to stack the containers in an unstable formation.
{40} 	NMED and DOE respond that the permit’s requirement that the containers be
stacked in “the best manner to provide stability” prohibits unstable stacking. Thus,
to the extent that stacking the containers in a two-high stack is to provide the best
stability, the Permittees are required by the permit to stack the containers no more than
two high. NMED argues further that because “the modified permit expressly forbids
the stacking of containers in an unstable manner[,]” the alleged problem identified by
Appellants is resolved by the language of the modified permit.
{41} 	Appellants argue that this Court cannot rely on the foregoing explanation
provided by NMED because, in response to a public comment regarding the stacking
concern, NMED did not expressly state “that a general direction to stack containers
‘in the best manner’ adequately protects against” unstable stacking. 	Therefore,
according to Appellants, this explanation cannot provide a basis for affirming

27
NMED’s decision because it constitutes a “post hoc rationalization” made for the first
time on appeal in support of NMED’s decision. See Rio Grande Chapter of Sierra
Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 11, 133 N.M. 97, 61 P.3d 806
(recognizing that “courts are not free to accept post hoc rationalizations of counsel in
support of agency decisions, because a reviewing court must judge propriety of
agency action solely on grounds invoked by [the] agency”). 	We do not find this
argument persuasive.
{42} 	The requirement that containers be stacked “in the best manner to provide
stability” is stated in the modified permit. The modified permit, including the at-issue
stacking-stability requirement, was before NMED when it issued its response to the
public’s comments. 	NMED’s failure to specifically raise the stacking-stability
requirement in response to public comment is not a bar to raising it now since the at-
issue language was obviously before NMED when the modified permit was approved,
thereby providing a ground on which NMED’s approval was based. Id. (recognizing
that this Court must judge an agency’s action on the grounds invoked by the agency).
That NMED omitted the stacking-stability requirement explanation from its response
to 	the 	public 	comment 	does 	not 	necessarily 	mean 	that 	the 	later 	expressed
rationalization was post hoc.

28
{43} 	Based on the requirement in the modified permit that the containers must be
stacked in the best manner to provide stability, we cannot say that NMED’s approval
of the modified permit was arbitrary or capricious. NMED has broad discretion in
interpreting the applicable regulations, including 40 C.F.R. § 270.42(b)(7)(iii). See
N.M. Attorney Gen., 2013-NMSC-042, ¶ 10 (recognizing that deference is accorded
to an agency’s interpretation of a regulation that it is charged with administering).
That NMED did not exercise its discretion to deny the permit reflects its view that the
requirement that the Permittees stack the containers in “the best manner to provide
stability” adequately protected human health and the environment. 	We will not
substitute our judgment for that of NMED in this regard. Plains Elec. Generation &
Transmission, 1998-NMSC-038, ¶ 7 (stating that the appellate courts defer to the
agency’s decision when reviewing decisions requiring expertise in highly technical
areas and that our judgment will not be substituted for that of the agency).
{44} 	Further, we note that in response to a public comment as to the inherent
flexibility in the modified permit, NMED emphasized that the up-to-three-high
language will allow “the Permittees to develop procedures to determine a stacking
height 	as 	appropriate 	depending 	upon 	certain 	containers 	or 	combination 	of
containers.”

29
D. 	Overpacking Procedures
{45} 	The term “overpacking” refers to the placement of a damaged container into a
larger, intact container to prevent waste from being released into the environment. The
permit states that “[s]hielded containers may be overpacked into standard waste box
or ten drum overpack.” Standard waste boxes and ten drum overpacks are types of
containers meeting certain regulatory and design specifications for the storage of
waste.
{46} 	The permit also enumerates the types of containers used for storing remote-
handled and contact-handled waste at WIPP. The permit states that contact-handled
“waste containers will be either [fifty-five-gallon] . . . drums singly or arranged into
[seven]-packs, [eighty-five-gallon] . . . drums singly or arranged into [four]-packs,
100-[gallon] . . . drums singly or arranged into [three]-packs, ten drum overpacks . . .,
standard large box 2s . . ., or [standard waste boxes].” 	And it states that remote-
handled “waste containers include RH TRU Canisters, which are received at WIPP
loaded singly in an RH-TRU 72-B cask, shielded containers, which are received in
HalfPACTs, and [fifty-five]-gallon drums, which are received in a CNS 10-160B
cask.”
{47} 	Based 	on 	the 	foregoing, 	Appellants 	argue 	that 	NMED 	arbitrarily 	and
capriciously authorized an unlawful practice by approving the modification request

30
because standard waste boxes and ten drum overpack containers that are “authorized
only to receive [contact-handled] waste” are “not authorized to contain [remote-
handled] waste.” 	Thus, Appellants argue, were a shielded container damaged in a
manner that caused it to have a surface dose rate greater than 200 millirems per hour,
thus requiring it to be managed as remote-handled waste, the modified permit
“contains no lawful procedure to manage” it. Appellants state that “[o]n its face, a
[p]ermit provision requiring a damaged shielded container . . . to be overpacked in a
container authorized only to contain [contact-handled] waste fails to protect health,
safety[,] and the environment and is arbitrary and capricious.” (Emphasis omitted.)
{48} 	Appellants’ argument in this regard requires examination of two distinct
overpacking circumstances. 	The first is overpacking shielded containers that,
although damaged, have a surface dose rate of less than 200 millirems per hour. The
second is how the Permittees intend to handle a shielded container with damage that
causes the container to have a surface dose rate in excess of 200 millirems per hour.
These contingencies were addressed separately in the modification request.
{49} 	In regard to the first contingency, the Permittees stated:
In the unlikely event that shielded containers have surface contamination
o r 	c o n t a i n e r 	i n t e g r i t y 	i s s u e s 	w h i c h 	m a y 	r e q u i r e
decontamination/repair/patch/overpacking, the Permittees may overpack
the shielded container into a standard waste box or ten drum overpack.
Because the surface dose rate is less than 200 [millirems per hour], this
overpacking will occur in the [contact-handled b]ay . . . and not in the

31
[remote-handled b]ay, consistent with overpacking other containers that
are managed and stored as [contact-handled] . . . waste.
In regard to the second contingency, the Permittees stated:
Even if the damage to the shielded container resulted in a breach of the
shielding, it would still be handled in the [contact-handled b]ay in
accordance with [the permit’s procedure applicable to control of spills
or leaking or punctured containers of contact-handled and remote-
handled waste] . . . . Facility radiological control programs will dictate
how a container breach will be mitigated and may include the use of
supplemental 	shielding, 	overpacks, 	or 	other 	methods 	to 	manage
radiological hazards beyond the scope of this [p]ermit.
{50} 	Thus, contrary to Appellants’ argument, the record in this case does not support
the conclusion that the Permittees intend to manage damaged shielded containers that
meet the definition of remote-handled waste by overpacking them within containers
that are only approved to hold contact-handled waste. Rather, the permit’s provision
that “[s]hielded containers may be overpacked into standard waste box or ten drum
overpack” addresses the manner in which the Permittees may handle damaged
shielded containers that meet the definition of contact-handled waste. Additionally,
the permit provides that “[o]verpack containers will be compatible with the hazards
of the materials involved.” 	To the extent that standard waste boxes or ten drum
overpacks would not be compatible with the hazards of a damaged shielded container
that was classified as remote-handled waste, the permit prohibits overpacking in that
manner.

32
{51} 	Based on the foregoing, we conclude that the record contradicts Appellants’
assertion that “[t]he permit clearly calls for placing [remote-handled] waste in
[contact-handled] containers[.]” Further, Appellants have not shown, by argument or
authority, that the Permittees’ plan to rely on radiological control programs to dictate
how to mitigate a container breach that causes the shielded containers to have surface
dose rate higher than 200 millirems per hour is inadequate. Accordingly, we do not
consider that issue in this appeal. 	See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9
(recognizing that it is the appellant’s burden to demonstrate that an agency’s decision
should be reversed).
{52} 	In sum, based on our review of the record, we reject Appellants’ argument that
NMED authorized an unlawful overpacking practice. 	Having reviewed and
considered all of the relevant evidence in the record pertaining to the overpacking
issue, we are unable to conclude that NMED’s decision to grant the modified permit
was arbitrary or capricious. See Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (“A
ruling by an administrative agency is arbitrary and capricious if it is unreasonable or
without a rational basis, when viewed in light of the whole record.” (internal quotation
marks and citation omitted)).

33
E. 	Breach of Shielded Containers
{53} 	Appellants’ final argument in regard to the adequacy of the modification
request concerns the possibility of a breach of the shielded containers. Before turning
to Appellants’ argument, and to provide context for our analysis, we review the
regulation upon which Appellants’ argument is premised.
{54} 	Title 40 of the Code of Federal Regulations, Section 264.601 governs the
environmental performance standards applicable to miscellaneous units, including
WIPP. 	See Environmental performance standards, 40 C.F.R. § 264.601 (2006);
Definitions, 40 C.F.R. § 260.10 (2014) (“Miscellaneous unit means a hazardous waste
management unit where hazardous waste is treated, stored, or disposed of[.]”);
20.4.1.100 NMAC (3/1/2009) (adopting 40 C.F.R. Part 260); 20.4.1.500 NMAC
(3/1/2009) (adopting 40 C.F.R. Part 264). Section 264.601 provides, in relevant part,
that 	miscellaneous 	units 	“must 	be 	located, 	designed, 	constructed, 	operated,
maintained, and closed in a manner that will ensure protection of human health and
the environment.” It further provides that “[p]ermits for miscellaneous units are to
contain such terms and provisions as necessary to protect human health and the
environment, including, but not limited to . . . design and operating requirements,
detection and monitoring requirements, and requirements for responses to releases of
hazardous waste or hazardous constituents from the unit.” 40 C.F.R. § 264.601. And

34
it enumerates a number of factors to be considered in meeting the foregoing
requirements. 40 C.F.R. § 264.601(a)-(c). Section 264.601 in Title 40 of the Code
of Federal Regulations does not govern modification requests, which, as as discussed
throughout this Opinion, are governed by 40 C.F.R. § 270.42.
{55} 	Appellants 	argue 	that 	NMED’s 	decision 	arbitrarily 	and 	capriciously
“disregarded” the terms of 40 C.F.R. § 264.601, which, Appellants state, is the
governing regulation. 	Appellants further argue that NMED acted arbitrarily and
capriciously by “revers[ing] itself as to the need for evaluation of the impacts of the
proposed modification under” 40 C.F.R. § 264.601. See 20.4.1.500 NMAC (adopting
40 C.F.R. Part 264). On these bases, Appellants argue that NMED’s decision must
be reversed.
{56} 	Pursuant to 40 C.F.R. § 270.42(b)(7)(ii), NMED “may deny or change the terms
of a Class 2 permit modification request” if “[t]he requested modification does not
comply with the appropriate requirements of 40 C.F.R. Part 264[.]” Thus, whether to
deny a modification request on the basis of lack of compliance with 40 C.F.R.
§ 264.601, is within NMED’s discretion. As a factual basis underlying its argument
that NMED’s action disregarded the terms of 40 C.F.R. § 264.601, Appellants state
that had NMED examined the issue of a possible breach of shielded containers, the
examination would have revealed the need “to limit the quantity of [remote-handled]

35
waste in shielded containers in areas where [remote-handled] waste was previously
barred.” Appellants also state that “regardless of the surface dose rate, contents of a
shielded container can be far more radioactive than [contact-handled] waste and can
have significant quantities of hazardous chemicals, creating significantly larger risks
in an accident.” Neither of the foregoing assertions of fact is supported by citation to
evidence in the record, therefore, they have no bearing on our analysis. See Muse v.
Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (stating that assertions of
counsel that are unsupported by the record provide no basis for review).
{57} 	As further factual support, Appellants point to Southwest Research’s public
comment that shielded containers “will likely have external dose rates that are more
than an order-of-magnitude greater than the [contact-handled] waste that is normally
handled[,]” with which, Appellants contend on appeal, NMED “did not disagree.”
While NMED did not directly rebuke this comment, it responded by reiterating that:
[o]nce the waste is placed in the shielded container and the surface dose
rate is no greater than 200 millirem[s] per hour, the waste is then handled
as [contact-handled] waste. The permit specifies management of waste
in the [contact-handled] waste related areas if the containers in those
areas can be managed as [contact-handled] waste.
We read NMED’s response to state that even assuming the likelihood that the shielded
containers will have higher external dose rates than contact-handled waste, it may be

36
managed safely within the contact-handled waste areas under the permit’s protocol
provided that its surface dose rate does not exceed 200 millirems per hour.
{58} 	Appellants do not, by argument or evidence in the record, demonstrate that
higher external dose rates that they contend are “likely” to be associated with the
shielded containers required examination of a possible breach and the consequences
thereof of the shielded containers. Nor, in their reply brief do Appellants respond to
NMED’s arguments regarding the “[i]nnumerable measures to protect public health
and the environment, including provisions specifically written to protect public health
and the environment from hazards associated with remote-handled . . . waste.” See
Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31, 126 N.M. 717, 974
P.2d 1174 (explaining that failure to respond in a reply brief to arguments raised in
an answer brief constitutes a concession of the matter). Among those measures are
overpacking shielded containers, as discussed earlier in this Opinion, installation of
“[o]ne or more filter vents” in the “shielded container lid to prevent the escape of
radioactive particulates and to prevent internal pressurization”; specific protocols
applicable to the management, storage, and placement of the shielded containers, and
security and radiological checks and shipping documentation reviews of the shielded
containers that arrive at WIPP. Having reviewed NMED’s citations to evidence in the
record pertaining to these safety measures, and having not been presented with

4 As stated in the background section of this Opinion, the present appeal
concerns NMED’s approval of a subsequent modification request that was filed by the
Permittees on July 5, 2012.
37
argument or evidence in the record demonstrating that they were inadequate, we
cannot conclude that NMED abused its discretion by not denying the permit pursuant
to 40 C.F.R. § 270.42(b)(7)(ii). See Oil Transp. Co., 1990-NMSC-072, ¶ 25 (stating
that an agency’s action that is “contrary to logic and reason” constitutes an abuse of
discretion).
{59} 	Nor are we persuaded by Appellants’ argument that NMED improperly
reversed its position when it failed to require an evaluation of the impacts of the
proposed modification under 40 C.F.R. § 264.601. 	Appellants’ argument in this
regard is premised on the history of the administrative proceedings applicable to the
September 29, 2011, modification request, which, although it is not at issue in this
appeal, is discussed in the background section of this Opinion to provide a historical
overview of the proceedings. 4 Appellants point to NMED’s December 22, 2011, letter
in which NMED informed the Permittees that their September 29, 2011, modification
request would be processed as a Class 3 permit modification.
{60} 	In the December 22, 2011, letter, NMED stated, in relevant part, that “[t]he
requested modification would require complex changes to the operation of the
facility. . . . 	[For] example, [NMED] will need to evaluate whether the proposed

38
modification complies with 40 C.F.R § 264.601(c)(6), which addresses the potential
for health risks caused by human exposure to waste constituents.” 	Six days later,
NMED retracted the December 22 letter. Subsequently, on January 31, 2012, NMED
issued its final decision as to the September 29, 2011, modification request, denying
the permit modification request to add provisions for shielded containers. 	The
January 31, 2012, letter did not refer to 40 C.F.R. § 264.601 as a basis for its denial.
Rather, NMED’s denial was based on “technical inadequacies” that could not be
corrected by NMED and approved with changes because NMED lacked sufficient
information to make the required changes.
{61} 	Appellants cite federal and state case law for the proposition that it is arbitrary
and capricious for an agency to change course without explanation, or treat one case
differently from another case with similar facts. See, e.g., Motor Vehicle Mfrs. Ass’n
of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-47 (1983)
(holding that a federal agency’s rescission of part of a federal regulation was arbitrary
and capricious where the agency failed to present an adequate basis and explanation
for the rescission); Sais v. N.M. Dep’t of Corr., 2012-NMSC-009, ¶ 17, 275 P.3d 104
(holding that “[a] worker’s termination may be arbitrary and capricious if one
employee is treated differently compared with others who are similarly situated and
no rational explanation is offered for the difference”). 	Based on that proposition,

39
Appellants argue that NMED’s approval of the modification request in this case
without having evaluated whether the proposed modification complies with 40 C.F.R
§ 264.601(c)(6), in keeping with the December 22, 2011, letter, rendered NMED’s
decision arbitrary and capricious because NMED “reversed its position on a
fundamental issue without explaining its reasons.”
{62} 	We do not share Appellants’ view that NMED’s December 22, 2011, letter,
which was rescinded six days after it was issued, and replaced with a letter that did not
rely on 40 C.F.R. § 264.601, may be viewed as reflecting NMED’s “position on a
fundamental issue.” 	At best, the rescinded letter can be said to have reflected
NMED’s view of the September 29, 2011, modification request which, although it
sought to introduce shielded containers to WIPP, suffered from technical inadequacies
and insufficient information. As indicated by NMED’s approval of the July 5, 2012,
modification request, the later request did not reflect the same deficiencies. As such,
we cannot conclude that NMED acted arbitrarily and capriciously by treating the
respective modification requests differently. See Sais, 2012-NMSC-009, ¶¶ 17, 21,
27 (stating that where there is a “meaningful distinction between” the differently
decided cases, disparate treatment of them does not constitute an abuse of discretion).
In the absence of evidence to the contrary, we conclude that the information contained
in the second modification request satisfied the requirements of 40 C.F.R. § 264.601,

40
thus alleviating the need for NMED, in its discretion, to deny the modification request
pursuant to that regulation. See 40 C.F.R. § 270.42(b)(7)(ii) (stating that NMED “may
deny or change the terms of a Class 2 permit modification request” if “[t]he requested
modification does not comply with the appropriate requirements of 40 C.F.R. Part
264”); Plains Elec. Generation & Transmission, 1998-NMSC-038, ¶ 7 (stating that
the reviewing court defers to the agency’s decisions when reviewing decisions
requiring expertise in highly technical areas and will not substitute our judgment for
that of the agency).
II. 	Appellants’ Arguments Regarding the Need for Class 3 Instead of Class 2
Proceedings
{63} 	In their remaining arguments, Appellants raise three points, in each of which
Appellants urge reversal of NMED’s decision that was rendered pursuant to Class 2
procedures and a remand of this case for Class 3 proceedings. We consider each of
Appellants’ three points in turn. 	And we conclude that none provides a basis for
reversal.
A. 	Storage Capacity
{64} 	Appellants’ first argument regarding the need for Class 3 instead of Class 2
proceedings stems from the regulatory requirement that a modification request that
will result “in greater than [a twenty-five percent] increase in the facility’s container
storage capacity” requires Class 3 proceedings. See 40 C.F.R. app. § 270.42(F)(1)(a)

41
(2008) (Classification of Permit Modification). Appellants argue that the modification
request increases WIPP’s storage capacity for remote-handled waste by allowing the
waste to be stored in areas that were previously limited to the storage of contact-
handled waste. Thus, according to Appellants, NMED’s decision was arbitrary and
capricious because it disregarded the terms of “the governing regulation.” See § 74-4-
14(A), (C)(3) (stating that we may reverse NMED’s decision if it is “not in accordance
with law”). Appellants’ argument is not supported by the applicable regulation or by
evidence in the record.
{65} 	The applicable regulation requires Class 3 proceedings under circumstances in
which the facility’s “container storage capacity” will be increased by more than
twenty-five percent. 40 C.F.R. app. § 270.42(F)(1)(a). On its face, 40 C.F.R. app.
§ 270.42(F)(1)(a) does not distinguish between the capacity of a facility to store
remote-handled waste versus contact-handled waste, and Appellants provide no
authority to support reading such a distinction into the regulation. Appellants do not
point to any evidence in the record indicating that, owing to the use of shielded
containers, WIPP will have any increase in storage capacity, much less a twenty-five
percent or greater increase, nor have we found any evidence in the record to support
such a conclusion. As such, Appellants have not demonstrated that NMED acted

42
arbitrarily 	or 	capriciously 	or 	that 	it 	improperly 	disregarded 	40 	C.F.R. 	app.
§ 270.42(F)(1)(a).
{66} 	Furthermore, to be clear, the volume of the shielded containers counts toward
the limit of remote-handled waste that may be shipped to and stored within WIPP. In
terms of WIPP’s ability to manage its limited volume of remote-handled waste, the
shielded containers have the effect of increasing the areas of WIPP where remote-
handled waste can be stored. That is, rather than storing the remote-handled waste
exclusively within the panel boreholes, the Permittees may, under the modified
permit, store remote-handled waste in shielded containers on the panel floors. Yet,
there is no evidence in the record to support a view that the Permittees’ ability to use
the space differently will increase WIPP’s storage capacity by more than twenty-five
percent. Without evidence to support it, Appellants’ argument in this regard provides
no basis for reversal.
B. 	Waste Management Practices
{67} 	Appellants argue that Class 3 procedures were required because the use of
shielded containers constitutes “[s]torage of different wastes in containers . . . [t]hat
require additional or different management practices from those authorized in the
permit[.]” 	40 C.F.R. app. § 270.42(F)(3)(a); see 20.4.1.900 NMAC (adopting 40
C.F.R. Part 270). 	Appellants argue that NMED arbitrarily and capriciously

43
disregarded the terms of the federal regulation by authorizing the use of shielded
containers under a Class 2 modification. Additionally, relying on NMED’s January
31, 2012, denial letter, Appellants argue that NMED acted arbitrarily or capriciously
by 	changing 	its 	position 	on 	the 	issue 	whether, 	pursuant 	to 	40 	C.F.R. 	app.
§ 270.42(F)(3)(a), Class 3 procedures were required to modify the permit to allow the
use of shielded containers at WIPP.
{68} 	The term “different wastes” as used in 40 C.F.R. app. § 270.42(F)(3)(a) refers
to a circumstance in which “the facility may be seeking to accept wastes that were not
previously identified in the permit, or it may already be managing the waste but would
prefer to shift it to a different treatment, storage, or disposal process.” 53 Fed. Reg.
at 37,927. 	Permit modifications to allow different wastes follow either Class 2 or
Class 3 procedures. Id.
{69} 	Class 2 procedures apply in circumstances in which the “different wastes . . .
are sufficiently similar to wastes currently authorized at the unit so that no additional
or different management practice, design, or process is required.” Id. For “example,
a unit may be permitted only to treat specific solvent wastes, but may be equally
capable of treating other solvent wastes that exhibit similar physical and chemical
properties within the same management conditions of the permit.” 	Id. 	Class 3
procedures apply in circumstances in which “the introduction of a different waste . . .

44
will require different or additional management practices, design, or processes to
properly manage the waste—for instance, if the waste is reactive or ignitable—and the
permit . . . does not anticipate that such wastes will be managed in the unit.” Id. In
the context of WIPP, the term “unit” means the eight underground disposal units
referred to throughout this Opinion and in the permit as “panels.”
{70} 	Appellants argue that Class 3 procedures were required because the Permittees
stated in their modification request that “[t]he shielded container will contain
hazardous waste already approved for disposal at the WIPP facility; however, that
waste ([remote-handled waste]) is approved for management in the [remote-handled
c]omplex and not in the [contact-handled b]ay, and therefore, . . . it is a different waste
in a particular unit.” 	Appellants characterize the foregoing as a concession by the
Permittees 	that 	Class 	3 	procedures 	were 	required; 	however, 	the 	Permittees’
acknowledgment of the fact that the modification includes “different waste in a
particular unit” is not dispositive. As indicated, in the preceding paragraph, “different
waste” may lead to Class 2 or Class 3 procedures; the determining factor is whether
“additional or different management practices from those authorized in the permit” are
required. 	See 40 C.F.R. app. § 270.42(F)(3). 	Following the “different waste”
statement, the modification request continued, providing the following relevant
explanation of why Class 2 procedures were applicable here.

45
In this modification, the Permittees are proposing to manage hazardous
waste that is defined as [remote-handled] waste by the generator in the
[contact-handled] waste management areas by using the shielded
container. Because [the remote-handled] waste has not been managed
and stored in the [contact-handled] portion of the facility, the Permittees
consider this Class 2 [permit modification request] as the appropriate
modification request to authorize this activity. Since modification of the
facility is not needed, and the imposition of different waste management
practices is not needed, this modification is not classified as a Class 3
[p]ermit [m]odification. 	This is because the management of [remote-
handled] waste in shielded containers can be done using existing
[contact-handled] waste practices in the [contact-handled] portion of the
facility.
{71} 	Appellants 	argue 	that, 	contrary 	to 	the 	Permittees’ 	statement, 	different
management practices are, in fact, required with the addition of shielded containers.
Appellants identify what they believe to be six management practices that are different
from those in the permit: 	(1) “[t]he shielded container itself is ‘a new payload
container’ with layers of lead and steel, weighing nearly a ton”; (2) “[m]anagement
of [remote-handled] waste in shielded containers requires shielded-container-specific
‘packaging requirements to minimize shifting’ ”; (3) “[t]he [three]-pack package
contains numerous elements not used in shipping [contact-handled] waste and is
managed differently from [contact-handled] waste shipments”; (4) “[i]n [the] event
of contamination or release from a shielded container, the [three]-pack must be
disassembled for overpacking”; (5) “[a] still-unknown, but shielded-container-
specific, overpacking method must contain the intense radiation from [remote-

46
handled] waste”; and (6) “[a] still-unknown, but shielded-container-specific, stacking
system will be used in [placing] shielded containers in the underground.” Appellants’
fifth and sixth points are not accompanied by authority, evidence, or citations to the
record proper and will not be considered.
{72} 	Appellants’ first through fourth management-practices points are not supported
by the record. As to Appellants’ first point, we do not believe, and Appellants do not
show by argument, authority, or evidence in the record, how their recitation of the
shielded containers’ weight and composition may be considered a “management
practice” or otherwise requires a new management practice. Concerning Appellants’
second 	point, 	that 	shielded 	containers 	are 	subject 	to 	particular 	packaging
requirements, Appellants provide no record support for their view that this affects
management practices or requires new management practices at WIPP. 	To the
contrary, 	the 	record 	reflects 	that 	the 	shielded-container-specific 	packaging
requirements govern the generator sites where the packaging will occur. 	As to
Appellants’ third point, contrary to their argument that the shielded containers must
be managed differently from contact-handled waste, the record reflects that shielded
containers do not need to be managed differently from contact-handled waste; rather,
they may be managed using contact-handled waste equipment and operating
procedures. 	Finally, as to Appellants’ fourth point, NMED argues and the record

47
reflects that the modification request does not require a new management practice;
rather, it provides that a damaged shielded container may be managed according to the
existing permit requirements.
{73} 	In sum, Appellants’ argument in regard to the different management practices
is not supported by the record. Because Appellants have not shown by argument or
evidence in the record that NMED contravened 40 C.F.R. app. § 270.42(F)(3) in
approving the modification request, we cannot say that NMED’s decision was
arbitrary or capricious. See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (recognizing
that it is the appellant’s burden to demonstrate that an agency’s decision should be
reversed); 	Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (“A ruling by an
administrative agency is arbitrary and capricious if it is unreasonable or without a
rational basis, when viewed in light of the whole record.” (internal quotation marks
and citation omitted)).
{74} 	Nor are we persuaded by Appellants’ argument that, in light of NMED’s
January 31, 2012, denial letter, we should conclude that NMED acted arbitrarily or
capriciously by changing its position on the issue whether, pursuant to 40 C.F.R. app.
§ 270.42(F)(3)(a), Class 3 procedures were required in this case. In contrast to the
September 29, 2011, modification request that provided a sparse and conclusory
statement as to why the modification request should follow Class 2 procedures, in

48
their July 5, 2012, modification request the Permittees provided two full pages
explaining why the modification request required Class 2 procedures. Among other
things, as indicated earlier, the Permittees addressed the issue whether different waste
management practices were required, concluding that they were not. Appellants have
not demonstrated that NMED erred in agreeing with the Permittees in this regard. See
N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (recognizing that it is the appellant’s
burden to demonstrate that an agency’s decision should be reversed). Moreover, as
we have noted, owing to the difference in the respective modification requests, we do
not believe that comparing NMED’s responses to them demonstrates that NMED
acted arbitrarily and capriciously. See Sais, 2012-NMSC-009, ¶¶ 17, 21, 27 (stating
that where there is a “meaningful distinction between” the differently decided cases,
disparate treatment of them does not constitute an abuse of discretion).
C. 	Public Concern
{75} 	As indicated earlier in this Opinion, in making a decision as to a Class 2
modification request, NMED is required to consider all written comments submitted
to NMED during the public comment period and must respond in writing to all
significant comments in the decision. 40 C.F.R. § 270.42(b)(6)(vi). NMED points
to the fact that of the 206 comments that it received, 173 were pre-printed form letters
containing “very little substance[,]” sixteen were copies, or near copies, of the form

49
letters, twelve “were similarly lacking in substance[,]” and only two organizations,
Southwest 	Research 	and 	Nuclear 	Watch 	New 	Mexico, 	provided 	substantive
comments. Thus, NMED argues, notwithstanding the volume of letters it received,
the substance of the public’s concern was fairly limited. NMED further argues that
it carefully considered the public comments it received and responded thereto in
writing, as evidenced by its explanatory written responses contained in the record.
NMED determined that in light of the fact that it held public meetings on the
modification request and addressed the public comments in writing, a public hearing
was not required.
{76} 	Appellants argue that NMED abused its discretion by failing to require Class
3 procedures pursuant to 40 C.F.R. § 270.42(b)(6)(i)(C)(1), which provides that
“significant public concern about the proposed modification” is a basis upon which
NMED may determine that the modification must follow Class 3 procedures.
Appellants’ argument in this regard is supported exclusively by the number of letters
sent to NMED during the comment period. 	Appellants argue that in NMED’s
December 22, 2011, letter pertaining to the September 29, 2011, modification request,
NMED stated that “more than [eighty] public comments indicated substantial public
concern, requiring Class 3 procedures[.]” Whereas, Appellants contend, in this case,
where “200 citizens express[ed] the need for a public hearing” as to the July 5, 2012,

50
modification request, NMED, acting contrary to logic and reason, found “a lack of
public concern[.]”
{77} 	In regard to this argument, as in regard to others that we have already discussed,
we do not find Appellants’ reliance on NMED’s December 22, 2011, letter that did
not pertain to the present modification request and that was retracted six days after it
was issued, persuasive. In NMED’s January 31, 2012, final decision on the matter of
the September 29, 2011, modification request, technical inadequacies, rather than
public concern over the use of shielded containers or the need for a public hearing,
was the basis for denying the modification request. Furthermore, without evidence
to the contrary, we assume that the public’s concern, like that of NMED, reflected the
technical and informational inadequacies of the September 29, 2011 modification
request. 	We do not conclude that the views expressed in NMED’s later-retracted
December 22, 2011, letter, which was written in response to a technically inadequate
modification request, is informative or persuasive in regard to NMED’s decision in
regard to the present modification request.
{78} 	Although we recognize that issues surrounding WIPP and modifications to the
permit 	are 	of 	general 	public 	interest 	and 	concern 	owing 	to 	the 	health 	and
environmental implications of waste storage within our state, Appellants have not
demonstrated that NMED abused its discretion by acting contrary to or ignoring the

51
public interest and concern in processing the modification request under Class 2
procedures. Short of a generalized reiteration of the issues raised throughout their
briefs, and addressed earlier in this Opinion, Appellants do not demonstrate that
NMED failed to adequately address the public’s specific concerns here by NMED’s
written responses to the public comments. N.M. Attorney Gen., 2013-NMSC-042, ¶ 9
(recognizing that it is the appellant’s burden to demonstrate that an agency’s decision
should be reversed). 	Nor do Appellants demonstrate, by argument, evidence, or
authority, what could have or should have been raised and addressed in a public
hearing that was not addressed in NMED’s written responses to the public’s
comments. 	See Sw. Research & Info. Ctr. v. N.M. Env’t Dep’t, 2003-NMCA-012,
¶ 39, 133 N.M. 179, 62 P.3d 270 (recognizing that “there is great public interest in the
WIPP facility in general” but holding that this “does not mean that there must be a
hearing for every administrative detail concerning the facility”). 	Under the
circumstances of this case, we are unable to conclude on the issue of public concern
that NMED abused its discretion by declining to process the modification request
under Class 3 rather than Class 2 procedures. See Oil Transp. Co., 1990-NMSC-072,
¶ 25 (stating the abuse of discretion standard).

52
CONCLUSION
{79} 	Based on our review of the record in this case, we are not persuaded that
NMED erred in approving the July 5, 2012, modification request to permit the
addition of shielded containers at WIPP. We affirm NMED’s approval of the permit
modification.
{80} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
JAMES J. WECHSLER, Judge
_______________________________
LINDA M. VANZI, Judge