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IN THE COURT OF APPEALS OF THE STATE OF NEW MEAICO

Opinion Number: Court of Appeals of New Mexico
pUHC UB OCT

“—— Filed , 10:18 AN

Filing Date: November 9, 2021 py
URE —

{

No. A-1-CA-37894 Mark Fayed as

NUCLEAR WASTE PARTNERSHIP, LLC

and UNTTED STATES on behalf of UNITED
STATES DEPARTMENT OF ENERGY,

Applicants-Appellees,

NUCLEAR WATCH NEW MEXICO
and SOUTHWEST RESEARCH AND

INFORMATION CENTER,

Protestants-A ppellants,

and

STEVE ZAPPE and HAZARDOUS WASTE
BOREAU,

Protestants,

IN THE MATTER OF THE DRAFT

HAZARDOUS WASTE FACILITY PERMIT
FOR CALCULATING FINAL DISPOSAL
VOLUMES WASTE ISOLATION PILOT

2) PLANT EPA TD NO. NM4SS0T S9088,

APPEAL FROM THE NEW MEAICO ENVIRONMENT DEPARTMENT

1) Butch Tongate, Cabimet Secretary

WN =

oO ~~

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Law Office of Robert A. Stranahan, IV
Robert A. Stranahan, IV
Santa Fe. NM

Hance Scarborough, LLP
Michael L. Woodward
Austin, TX

Fritz, Byrne, Head & Gilstrap, PLLC
J.D. Head
Austin, TX

Gallagher & Kennedy
Dalva L. Moellenberg
Santa Fe, NM

for Appellee Nuclear Waste Partnership, LLC

United States Department of Justice

Michael H. Hoses, Assistant United States Attorney

Albuquerque, NM

Environment and Natural Resources Division

John E. Sullivan
Sarah Izfar
Washington, DC

for Appellee United States Department of Energy

Lindsay A. Lovejoy, Jr.
Santa Fe, NM

for Appellants

OM BW NO eS

Hector H. Balderas, Attorney General
Santa Fe, NM
Christal Weatherly

ee 8 ed Westie V5

Special Assistant Attorney General

Christopher J. Vigil, Special Assistant Attorney General
Albuquerque, NM

for Administrative Agency NM Environment Department

OPINION

a; ~~ Appellants Southwest Research and Information Center and Nuclear Watch
New Mexico appeal the order of the Secretary of the New Mexico Environment
Department (NMED) approving a permit modification request that modified the
method by which Appellees Nuclear Waste Partnership LLC (NWP) and the U.S.
Department of Energy (DOE) track waste volumes disposed of at a radioactive waste
repository. Appellants argue that the administrative Hearing Officer, Max Shepherd
(the Hearing Officer), should have been disqualified and that NMED’s order was
contrary to law, arbitrary and capricious, and an abuse of discretion. Finding no
error,' we affirm.

BACKGROUND

23 The following undisputed facts’ are reflected in the Hearing Officer’s report,

which was adopted by NMED. The underlying permit request addresses the method

‘Appellants’ briefing cited to the administrative record rather than the record
proper, in violation of Rule 12-318(A)(3) NMRA, which needlessly complicated our
review, especially given that the record proper contained 104 volumes. Appellants
are reminded to comply with this rule in the future.

Although Appellants note in their briefing that some of the Hearing Officer’s
findings of fact failed to cite to the record, Appellants do not argue that any of the
specific findings were not supported by substantial evidence and characterize the
issues on appeal as “legal, not factual.” Thus, we accept that the Hearing Officer’s
findings of facts, as adopted by NMED’s order, are supported by substantial
evidence. See Rule 12-318(A)(3).

of volumetric measurement for Transuranic (TRU) waste disposed of at a federal

repository for radioactive waste material.

{33 |For shipping and safety reasons, this waste is often packaged inside multiple
containers, with an inner waste container placed inside a larger container, a process
characterized as “overpacking.”* At issue here is whether the volume of the waste
should be calculated and tracked based on the size of the inner waste container or
based on the larger outer container, which includes significant “void space [between
the inner and outer container] made of air and/or dunnage (inert material), which is
not waste.” The outer container volume equates to 30 percent greater volume based
on packaging.

44 The containers are disposed of at the Waste Isolation Pilot Plant (WIPP).
WIPP is an underground federal repository for radioactive waste material located in
New Mexico. WIPP was authorized to “demonstrate the safe disposal of radioactive
waste materials generated by atomic energy defense activities” and “isolate and
dispose of DOE’s inventory of defense [TRU] waste in a manner that protects public
health and the environment.” The WIPP facility consists of Hazardous Waste
Disposal Units (HWDUs), which are underground rooms designated for the disposal

of waste containers. In practice, the TRU waste disposed of at WIPP is “TRU mixed

waste[,]” which contains radioactive waste mixed with hazardous waste.

>See appendix for diagrams of overpacked containers (Exhibits D & E).

I. Statutory Background

adioactive materials

gE tive materials are regulat
Act of 1954. Hazardous materials, by contrast, are regulated by NMED, pursuant to
the Resource Conservation and Recovery Act (RCRA), which authorized the State
to implement a hazardous waste program “equivalent to” the federal RCRA
requirements. 42 U.S.C. § 6926(b)(1). This equivalent hazardous waste program was
enacted through the New Mexico Hazardous Waste Act (HWA), NMSA 1978,
Sections 74-4-1 to -14 (1977, as amended through 2018), which adopted RCRA
regulations and authorized NMED to regulate WIPP and issue permits regarding
storage of hazardous waste at WIPP. Thus, NMED, pursuant to its RCRA authority,
“has regulatory authority over the hazardous waste portion of TRU mixed waste.”
NMED “manages all waste emplaced at WIPP as TRU mixed waste.”

6} | With regard to the volumetric waste capacity of TRU waste at WIPP, the
Waste Isolation Pilot Plant Land Withdrawal Act (LWA) of 1992, limits its total
amount to 6.2 million cubic feet. Pub. L. No. 102-579, 106 Stat. 4777 as amended
by Pub. L. No. 104-201, 110 Stat. 2422 (1996). The LWA, however, does not specify
a volumetric calculation method for TRU waste or TRU mixed waste.

A. The Permit Modification Request

{3} As co-operators of WIPP, DOE and NWP (Permittees) heid a permit to

dispose of TRU mixed waste at WIPP but sought NMED approval to modify their

permit. The original permit anticipated the emplacement of 6.2 million cubic feet of

of TRU mixed waste. The assumption that the containers would be full, however,
proved to be incorrect. In practice, many containers shipped from the generator and
storage sites were not full but rather overpacked, as described above. Because the
permit incorrectly assumed the containers would be full of TRU mixed waste, this
“creat[ed] a de facto limit that could result in underutilizing the WIPP facility.”
Before the permit modification at issue, the method of determining the volume of
TRU mixed waste at WIPP was not explicitly stated in the permit.

‘33 Permittees submitted to NMED a permit modification request (PMR’%),
proposing two distinct methods for measuring waste volume to distinguish between
TRU mixed waste and TRU waste. Following public notice, meetings, and
comments, the Hearing Officer issued a report recommending the creation of two
distinct volume calculation methods in the permit, stating, “The first type of
calculation [based on TRU mixed waste] is based on the outermost disposal
container and . . . pertains to RCRA requirements. “The second type of calculation
is based on the [TRU] waste inside the disposal containers and pertains to the LWA

capacity limit.” The Hearing Officer reasoned that the outer container volume “is

“As used throughout this opinion, “PMR” refers to the final draft version
submitted to the Hearing Officer and adopted by NMED order.

only significant for the emplacement footprint of waste” in an HWDU at the WIPP—

TRU waste inside the disposal container pertains to and is significant for the LWA
capacity limit of 6.2 million cubic feet.

93 The PMR did not seek an increase of WIPP’s disposal capacity, but rather
sought to clarify that the maximum capacity of the WIPP facility as it pertained to
the Permit under RCRA was based on the TRU mixed waste capacities of the
individual HWDUs rather than on the limitation established in the LWA. The
Hearing Officer noted that although tracking the LWA TRU waste volume based on
the inner container separately from the RCRA TRU mixed waste volume based on
the outer container could theoretically increase WIPP’s emplacement footprint by
approximately 30 percent, the Permittees would have to submit an additional PMR
to increase the footprint of WIPP. NMED adopted the Hearing Officer’s
recommendation and approved the PMR. Appellants contend NMED erred in
approving the PMR.

DISCUSSION

II. Appellants Failed to Preserve Their Argument That the Hearing Officer
Should Have Been Disqualified

410} Appellants first argue the Hearing Officer should have been disqualified and
his report and NMED’s order vacated, because of his contract with NMED.

Appellants contend the failure to disqualify the Hearing Officer was a “fatal flaw”

in the process, denying litigants an impartial tribunal and violating their due process

rights. Appellants fail to
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cite to any evidence establishing that the Hearin
decision in this case reflected prejudice or bias; instead Appellants rely solely on the
Hearing Officer’s contract with NMED, which provided for payment at an hourly
rate.° Appellants contend that payment alone provided an incentive to handle
hearings to NMED’s satisfaction. Appellants failed to preserve this issue by raising
it below, raising it only after NMED issued its order, and we decline to reach it. See
Rule 12-321(A) NMRA; State v. Leon, 2013-NMCA-011, 9 33, 292 P.3d 493 (“We
generally do not consider issues on appeal that are not preserved below.” (internal
quotation marks and citation omitted)); Pickett Ranch, LLC v. Curry, 2006-NMCA-
082, 7 3, 140 N.M. 49, 139 P.3d 209 (declining to reach an issue the appellant did
not raise before the hearing officer).

II. NMED’s Order Is Proper

413 Appellants next argue NMED improperly ordered approval of the PMR.
Under the HWA, this Court reviews an administrative order of NMED to determine
whether the order is “arbitrary, capricious or an abuse of discretion; .. . not supported

by substantial evidence in the record; or. . . otherwise not in accordance with law.”

Section 74-4-14(C). Appellants bear the burden of showing relief is warranted. Dofia

>Appellants did not introduce the contract during the hearing, but instead
included it as an exhibit to their brief in chief on appeal.

Mut. Domestic Water Consumers Ass’n v. N.M. Pub. Regul. Comm’n, 2006-

Ana
NMSC-032, 4 9, 140 N.M. 6, 139 P.3d 166. We review an agency’s conclusions of

law de novo. Law v. N.M. Hum. Servs. Dep’t, 2019-NMCA-066, 4 11, 451 P.3d 91.
A. NMED ’s Order Is in Accordance With Applicable Law

4123 Appellants raise five arguments to support their contention that NMED’s
order approving the PMR was not in accordance with the law. Appellants contend
NMED’s order (1) abandons the State’s authority under RCRA, (2) misinterprets the
LWA, (3) creates a conflict between RCRA and the LWA, (4) DOE lacks the
authority to interpret or enforce the terms of the LWA, and (5) the order violates a
Consultation and Coordination agreement between the State and DOE. “The term
“not in accordance with law’ involves action taken by an agency or court which is
based on an error of law, is arbitrary and unreasonable, or is based on conjecture,
and is inconsistent with established facts.” Perkins v. Dep’t of Hum. Servs., 1987-
NMCA-148, § 22, 106 N.M. 651, 748 P.2d 24. “Whether [NMED’s] actions were
contrary to law is a question reviewed de novo.” Smyers v. City of Albuquerque,
2006-NMCA-095, 4 5, 140 N.M. 198, 141 P.3d 542. Additionally, we review an
agency’s rulings regarding statutory construction de novo. A/buquerque Bernalillo
Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, § 50,

wT 4 ~ aA 7

148 N.M. 21, 229 P.3d 494. We consider each of Appeiiants’ points in turn and

conclude that none of them provide a basis for vacating NMED’s order.

1. NMED ’s Order Is in Accordance with RCRA and the HWA

contend RCRA regulations require NMED to “consider the nature and volume of the
wastes proposed for disposal and how hazardous wastes might escape, and to issue
a permit that protects human health and the environment[,|” and that NMED must
continue to enforce a waste volume limit measured by the outer waste container, as
it did for nineteen years under the previous permit. We disagree that a previous
permit is not subject to change and remain unpersuaded by Appellants’ argument
that the revised permit is contrary to RCRA or its regulations.

(144 RCRA’s primary purpose is to reduce the generation of hazardous waste and
to ensure the proper treatment, storage, and disposal of that waste which is
nonetheless generated, “so as to minimize the present and future threat to human
health and the environment.” 42 U.S.C. § 6902(b). RCRA authorizes states to
administer a hazardous waste program in lieu of the federal program, as long as the

“

state program is “ ‘equivalent to’ [and] no less stringent than the federal
[requirements].” See 42 U.S.C. § 6926(b) (authorizing the states to, among other
things, “issue . . . permits for the storage .. . or disposal of hazardous waste).” The
HWA, in turn, authorizes NMED to administer the State’s hazardous waste

management program consistent with RCRA. See § 74-4-4(A); Sw. Rsch. & info.

Ctr. v. N.M. Env’t Dep’t, 2014-NMCA-098, § 9, 336 P.3d 404.

415} Appellants point to no RCRA or HWA provision or regulation requiring that

authorizes states to carry out a hazardous waste program and issue permits for
storage and disposal of hazardous waste consistent with federal requirements, see 42
U.S.C. § 6926(b), and the HWA provides that permittees may submit permit
modification requests to NMED, and that NMED is charged with issuing a decision.
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 NMED). Because RCRA
authorizes states to issue permits and the HWA authorizes NMED to modify permits,
we are unpersuaded by Appellants’ argument that NMED must continue to enforce
the permit exactly as it has in the past. While Appellants cite RCRA regulations® to
support their argument that NMED abandoned its authority under RCRA, these
regulations neither specify that the outer container must be the lone measure of waste
emplacement volume nor indicate that including additional tracking data pertaining
to the inner waste container volume would adversely affect human health or the
environment,

416} We cannot say NMED’s order to approve the PMR is not in harmony with its

statutory authority under either RCRA or the HWA. See Rio Grande Chapter of the

°These RCRA regulations have been adopted as HWA regulations. See, e.g.,
20.4.1.200 NMAC (adopting 40 C.F.R. § 261 (1980)); 20.4.1.500 NMAC (adopting
40 C.F.R. § 264 (1980)); 20.4.1.900 NMAC (adopting 40 C.F.R. § 270 (1983)).

Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, 4 25, 133 N.M. 97, 61 P.3d

g that the “[rJules adopted by an administrative agency will be upheld if

they are in harmony with the agency’s express statutory authority or spring from
those powers or may be fairly implied therefrom” (internal quotation marks and
citation omitted)). The HWA, pursuant to RCRA, authorizes NMED to administer
the State’s hazardous waste program. See § 74-4-4(A); Sw. Rsch. & Info. Ctr., 2014-
NMCA-098, 4 9. This authority necessarily includes the responsibility to collect data
regarding the amount of hazardous waste the HWA charges NMED with regulating.
The PMR enables the NMED to collect more, not less, data by tracking the volume
of the innermost waste container in addition to the volume of the outermost
container. We therefore conclude NMED’s order to approve the PMR did not
abandon its authority under RCRA or the HWA and is consistent with its
responsibility to monitor waste quantity.

2. NMED Did Not Erroneously Interpret the LWA

7; Appellants also contend NMED’s order misinterprets the LWA. They argue
that Pub. L. No. 102-579, § 7(a\(3), 103 Stat. 4777 of the LWA requires measuring
the WIPP capacity limit by the volume of the outermost waste container, as
evidenced by the legislative intent behind the LWA and in light of other LWA

provisions. We disagree.

fs} “Whether or not legislative history is ever relevant, it need not be consulted

when the statutory text is unambiguous.” United States v. Woods, 571 ULS. 31,
46 0.5 (2013) (citing Mohamad v. Palestinian Auth., 566 U.S. 449 (2012)); accord

Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, © 23, 147 N.M. 523, 226 P.3d
622 (stating that our Supreme Court interprets a statute and determines its legislative

intent when the statute’s language is ambiguous but interprets the statute as written

when it is clear and unambiguous). “[W]e will not read into a statute... language
which is not there, particularly if it makes sense as written.” Sw. Org. Project v.

Albuquerque-Bernalillo Cnty. Air Quality Control Bd., 2021-NMCA-005, 4 11, 482
P.3d 1273 (internal quotation marks and citation omitted).

419} Weconclude the LWA is unambiguous, and thus interpret it as written. LWA,
Pub. L. No. 102-579, § 7(a)(3), 103 Stat. 4777 establishes the total storage capacity
for TRU waste by volume: “6.2 million cubic feet of transuranic waste.” /d. The
LWA does not specify a method for measuring TRU waste volume. Neither does the

ry
27

Statute’s definition of “transuranic waste”’ specify a method for measuring TRU
waste volume or include discussion of void space or dunnage materials within the

outermost container. See Pub. L. No. 102-579, § 2(20), 106 Stat. 4777. Congress

"Defining “transuranic waste” as “waste containing more than 100 nanocuries
of alpha-emitting transuranic isotopes per gram of waste, with half-lives greater than
[twenty] years,” subject to several exceptions, not relevant here. Pub. L. No. 102-
579, § 2(20), 106 Stat. 4777, as amended by Pub. L. No. 104-201, § 3182 (1992 and
1996).

certainly could have inserted language in the 1996 amendment to the LWA

a manner that would require inclusion of void space or dunnage materials within the
outermost container. No such language was included, and we decline to read such
language into the Act. See Rio Grande Chapter of the Sierra Club, 2003-NMSC-
005, 74 24-26 (declining to read language into a statute silent as to a particular issue
but instead reading the statute as “simply . . . not address[ing]” that issue and
determining that an agency’s interpretation of the statute fell within its statutory
authority). Nor do Appellants point to another LWA provision that specifies that
TRU waste volume must be calculated by measuring the outer container volume.*®
Having determined that the plain language of the statute specifies a waste capacity
limit but simply does not address a particular method for calculating that limit, a
circumstance quite similar to that our New Mexico Supreme Court encountered in
Rio Grande Chapter of the Sierra Club, see id., we cannot find ambiguity in
language that is simply not in the statute. Because we conclude the statute is
unambiguous, and that there is no basis to conclude that the NMED order runs afoul
of language contained within the LWA, we need not reach Appellants’ arguments

regarding the LWA’s legislative history or intent regarding waste volume

’We note that several statutory provisions Appellants cite in support of their
argument come from the preamended version of the LWA.

calculation. See Lion’s Gate Water, 2009-NMSC-057, § 23. Accordingly, we

aNLY ae aan ot ei

conclude NMED did not erroneously inte
3. NMED’s Order Does Not Create a Conflict Between RCRA and the LWA
20} Appellants argue NMED is “obligated to avoid finding a statutory conflict”
between RCRA and the LWA and instead “must strive to give effect to both
statutes.” To the extent a conflict does exist between RCRA and the LWA,
Appellants contend RCRA would prevail. Having determined that neither RCRA
nor the LWA specifies a method for measuring waste emplacement volume at WIPP,
we conclude the PMR does not conflict with either statute. Instead, the PMR
provides for two distinct methods for calculating waste, which correspond to two
distinct purposes: (1) tracking mnermost container volumes, which relates to the
LWA’s 6.2 million cubic feet TRU waste capacity limit; and (2) tracking outermost
contamer volumes, which relates to the physical capacity of individual HWDUs. The
PMR thus continues to track the oulermost container volume, but incorporates
additional data tracking the innermost container volume.

gi; Appellants argue “DOE’s proposed interpretation would change a
longstanding and controlling interpretation without any explanation, contrary to

law.” Appellants contend that “{njeither DOE nor NMED has offered a reasoned

explanation for changing the interpretation of the LWA limit,” ° and the “facts
have not changed since the 1980’s, when DOE reliec 1.” We
disagree.

23 Although DOE has historically measured and reported waste volume based on
the volume of the outermost container, as we previously noted, the permitting
process allows for permit modifications over time to address changed circumstances.
See § 74-4-4.2(D) (authorizing NMED to modify permits); § 74-4-4.2(G)(2) (stating
that a “permit may be modified at the request of the permittee for just cause as
demonstrated by the permittee”). DOE and NMED offered a reasoned explanation
for the PMR. The Hearing Officer found that “DOE has explained in the PMR that
the assumptions upon which the original method of measuring waste emplaced in
WIPP have[,] with experience[,] proven to be wrong and without the changes
embodied in the PMR the DOE will not be able to complete the purpose for which
WIPP was authorized by Congress.” Because the original permit incorrectly

assumed that the containers would be full of TRU mixed waste, the assumption

created “a de facto limit that could result in underutilizing the WIPP facility[,]”

Appellants also argue that the State and its citizens have relied on the WIPP
volume limit. This argument is not adequately developed and we therefore decline
to address it. See Corona v. Corona, 2014-NMCA-071, § 28, 329 P.3d 701 (“This
Court has no duty to review an argument that is not adequately developed.’’).

Appellants further contend that the State and its citizens have relied on the
WIPP volume limit. Again, this argument is not adequately developed and we
decline to address it. /d.

contrary to the LWA, which established the limit of 6.2 million cubic feet of waste
to be emplaced
actual volume of material is tracked, as well as the volume of the storage containers
to be emplaced, so that as the department explained, it could more easily ensure that
it complies with the volume limitation in LWA, we conclude that the PMR is
supported by a reasoned explanation.

3} To the extent Appellants argue the PMR violates the LWA because it allows
DOE to use “any method of calculation it chooses,” resulting in “no /imit at all” for
TRU waste, Appellants’ assertion is contrary to the record. The Hearing Officer
found that DOE “clearly articulated the method that [will be] utilized to determine
the volume of waste in containers emplaced in WIPP.” DOE uses a tracking program
containing complete information on the types of inner and outer containers being
shipped to WIPP, allowing DOE to track individual container volumes based on
container type. DOE will thus track the LWA capacity limitation based on imner
containers with a known geometry.

g4; Finally, Appellants argue that the Hearing Officer failed to consider “the
multiple savings clauses that maintain the State’s authority to apply RCRA.”
Appellants fail to develop this argument and provide no analysis regarding the way
in which the language of the savings clauses should have factored into the hearing

officer’s recommendations. Even so, we find nothing in the LWA’Ss savings clauses
2

that address or specify the manner tn which the waste volume should be measured.

permitting decision at issue is wrong. The NMED’s order approving the PMR is
consistent with the LWA’s limitation on the total waste capacity, which cannot be
complied with unless there is an accurate method for measurement of that waste.

4. DOE’s Authority

5} Appellants claim DOE lacks the authority to interpret or enforce the terms of
the LWA. NMED’s order adopted the findings of the Hearing Officer, who
determined that the question of DOE’s independent authority under the LWA to
interpret the volume limitation was inapplicable because the statutory language in
the LWA is unambiguous. The Hearing Officer reasoned that, because the statutory
language is unambiguous, “DOE is. . . not interpreting the volume limitation in
LWA but simply relying on what is unambiguously stated.” The Hearing Officer
further noted that because various federal statutes “grant DOE the responsibility and
authority to manage certain radioactive materials[,] including radioactive waste, . . .
[these statutes] would appear to grant DOE authority to make decisions related to
carrying out its responsibility of disposing of the defense TRU waste[,]” despite the
lack of explicit language granting DOE authority to “interpret[] the volume

jimitation in [the] LWA.” in so finding, the Hearing Officer relied on United States

v. Turkette, 452 U.S. 576, 580 (1981), which held that “[i]f the statutory language is

unambiguous, in the absence of a clearly expressed legislative intent to the contrary,

and citation omitted).

26; We agree with the Hearing Officer’s reasoning. The language of the LWA
simply states that the volume limit for TRU waste at WIPP is 6.2 million cubic feet,
which is the limit on waste material that DOE is required to manage. Because DOE
is merely carrying out its statutory responsibility to manage TRU waste, and because
the language of the LWA setting the limit on such waste is unambiguous, we
conclude that DOE is not exercising an independent authority to interpret the LWA.
5. The Consultation and Cooperation Agreement

27 Appellants contend NMED’s order violates WIPP capacity limits in the 1987
Consultation and Cooperation Agreement (C&C Agreement). They argue that the
1987 C&C Agreement’s reference to DOE’s 1981 WIPP Record of Decision, “which
came from the 1980 FEIS and is based on container volume[,]” requires DOE to
continue to calculate TRU waste by outermost container volume.

38} The WIPP authorization act provides that DOE shall consult with New
Mexico officials in regard to the WIPP project and seek to enter into an agreement
with New Mexico officials. Pub L. 96-164, § 213(b), 93 Stat. 1259 (1979). The DOE
and New Mexico entered into such an agreement in 1981, which has twice been

modified. However, the most recent version, the 1987 C&C agreement, contains no

TAN PW

requirement or discussion of the proper method for measurement. The 1987 C&C

Agreement states:

£2S ve

Prior to receiving more than 15 percent by volume of the [TRU]

waste capacity of [WIPP], described as 6.2 million cubic feet of [TRU]

waste in [DOE’s 1981 WIPP] Record of Decision, . . . the Secretary of

Energy shall demonstrate that the [WIPP] meets the applicable

environmental standards for the disposal of radioactive waste[. |
We fail to see how this language establishes a capacity limit for WIPP based on the
outermost container volume. If the State and DOE had wanted modifications to the
C&C Agreement limiting the volume of waste at WIPP by outer container volume,
the parties to the agreement would have included such a provision.
9} Moreover, Appellants acknowledge “[t]he C&C Agreement is independent of
the [WIPP] Permit.” With that admission, we fail to understand how the C&C
Agreement is relevant to the permitting issues raised in this appeal and Appellants
do not further explain why we should consider the C& C Agreement at all, so we
will not consider this argument further.
30} In sum, we cannot say NMED’s order to approve the PMR was “based on an
error of law, .. . arbitrary and unreasonable, . . . based on conjecture, . . . [or]

inconsistent with established facts.” Perkins, 1987-NMCA-148, § 22. Accordingly,

we conclude NMED’s order was in accordance with the law.

B. NMED?’s Order Was Not Arbitrary and Capricious or an Abuse of
Discretion

4313 Appellants argue NMED’s order was arbitrary and capricious and an abuse of
discretion in light of the Hearing Officer’s and NMED’s failure to consider evidence
regarding safety issues at WIPP. We disagree.

323 The Hearing Officer considered relevant safety testimony and heard testimony
indicating the PMR would not impact safety. The Hearing Officer’s unchallenged
finding stated that safety testimony presented by Appellants’ witness was of critical
importance but noted that it was not developed enough to affect his recommendation
to approve the PMR. Moreover, in adopting the Hearing Officer’s findings of fact,
conclusions of law, and recommended disposition, NMED “considered the
administrative record in its entirety,” which included testimony from a witness
opposing the PMR acknowledging that the proposed modification would not impact
human health or the environment.

4333 The Hearing Officer also considered Appellants’ argument that the PMR
“request[ed] a major expansion” of WIPP, and found that the PMR did not seek an
expansion of WIPP disposal capacity. The Hearing Officer also found that any
attempt to expand the footprint of WIPP by utilizing additional HWDUs would
require permittees to submit another PMR. Our own review of the record similarly

indicates that the PMR only adds additional tracking data and does not expand the

regarding safety issues at WIPP, or that NMED's order was without a rational basis or contrary to logic and reason, or that evidence did not support NMED's finding. Accordingly, we conclude NMED's order was not arbitrary and capricious or an abuse of discretion.
CONCLUSION
(34)} {35}
For the above reasons, we affirm.
IT IS SO ORDERED.
Hastna Baga
KRISTINA BOGARDUS, Judge
WE CONCUR:
J. MILES HANISEE, Chief Judge
13 14
SHAMMANA H. HENDERSON, Judge
20
1 2 3 4 5 6 7 8 9 10 11 12

APPENDIX
Standar Ten-Omx Overpack (TROP)
Standard Waste Box (SWB3).
SVB VOARDe: 1.68 m2
3COOP Volume: 4.5 m2
SWB Volume of & Overpacked 58-Gallas Drums: 4 x 0.21 = 8.84 m (-48% of Swa Volume)
TDOP Volume of 10 Overpacked 55-Gallon Drummix: 18.x 0.2: = 2.1 m 3-47% /TDOP Vokime)
EXHIBIT D LARGER CONTAINERS USED TO OVERPACK 55-GALLON DRUMS
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35-Gallon Dsom
$100 Pipe Overpack Container (POC)
SS-Gallon Onan Volume: 0.21 n:2
8100 inger Container Vokxxx: 0.00163 m2 (~3% of 85-Gallon Orsam Volume)
PIPE OVERPACK COMPONENT PLACED IN A 55-GALLON DRUM
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November 9, 2021- Nuclear Waste Partnership, LLC v. Nuclear Watch New Mexico, No. A-1-CA-37894

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