September 9, 2016 – In the Matter of the Petition for a Hearing on the Merits Regarding Air Quality Permit No. 3135

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: September 9, 2016
NO. 34,285
IN THE MATTER OF THE PETITION
FOR A HEARING ON THE MERITS
REGARDING AIR QUALITY
PERMIT NO. 3135
MARGARET M. FREED, MARY ANN ROBERTS,
and PAT TOLEDO,
Petitioners-Appellants,
v.
THE CITY of ALBUQUERQUE and
SMITH’S FOOD & DRUG CENTERS, INC.,
Respondents-Appellees.
APPEAL 	FROM 	THE 	ALBUQUERQUE-BERNALILLO 	COUNTY 	AIR
QUALITY CONTROL BOARD
Felicia L. Orth, Hearing Officer
Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Albuquerque, NM
for Appellants

City of Albuquerque City Attorney’s Office
Jessica M. Hernandez, City Attorney
Carol M. Parker, Assistant City Attorney
Albuquerque, NM
for Appellee City of Albuquerque
Sutin, Thayer & Browne, P.C.
Frank C. Salazar
Albuquerque, NM
for Appellee Smith’s Food & Drug Centers, Inc.

OPINION
HANISEE, Judge.
{1} 	In this appeal, we consider whether the Albuquerque-Bernalillo County Air
Quality Control Board (the Board) gave sufficient notice of its hearing on motions to
summarily resolve a challenge to a permit issued by the City of Albuquerque
Environmental Health Department (the Department), as required by Section 74-2-7(I)
of the Air Quality Control Act (the AQCA), NMSA 1978, §§ 74-2-1 to -17 (1967, as
amended through 2009) and its own regulations. Concluding that it did not, we vacate
the Board’s decision and remand for further proceedings.
BACKGROUND
{2} 	In November 2013 Respondent Smith’s Food & Drug Centers, Inc. (Smith’s)
submitted an application to the Department seeking a permit to construct a gas station
with authorization to pump up to 7,000,000 gallons of gasoline per year. After holding
a public hearing on the application, the Department granted Smith’s application and
issued the requested permit.
{3} 	Petitioners Margaret Freed, Mary Ann Roberts, and Pat Toledo (collectively
Petitioners) filed a written petition challenging the permit with the Board. Petitioners
contended that the Department had failed to take into account various “quality-of-life
concerns raised by [hearing] participants” and that the Department’s decision to grant

1See Section 74-2-7(J) (stating that “[t]he environmental improvement board or
the local board may designate a hearing officer to take evidence in the hearing”).
2
The prehearing order defines “[t]echnical evidence or testimony” as “scientific,
engineering, economic or other specialized evidence or testimony. It does not mean
legal 	argument, 	general 	comments 	or 	statements 	of 	policy.” 	This 	definition
paraphrases the definition of “[t]echnical evidence” set out in Board regulations. See
20.11.81.7(T) NMAC.
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the permit application would cause “emissions, odors, fumes, increased traffic[,] and
other negative impacts on [Petitioners’] property.”
{4} 	The Board appointed a hearing officer, who entered a “prehearing order”
scheduling a public hearing on the petition for September 10, 2014.1 The prehearing
order required the parties to engage in “limited written discovery” and “early filing
of technical testimony in full narrative” in order to “obviate the need for depositions.” 2
The prehearing order required Petitioners or any other interested participants to file
a “notice of intent to present technical testimony” prior to the hearing which
summarized the technical testimony that Petitioners would offer at the hearing. The
Board published a notice stating that “public comment of a non-technical nature”
would be heard at the September 10, 2014, hearing, and that any member of the public
who sought to present technical evidence would be required to file a notice of intent
before August 8, 2014. The notice also stated that “[u]pon conclusion of the
evidentiary hearing, the hearing officer will announce the post hearing process. At a
later date, the Board will deliberate and decide whether the permit appeal will be

3
granted . . . or be denied.”
{5} 	On August 26, 2014, the hearing officer amended the prehearing order. The
hearing officer’s order rescheduled the hearing on Petitioners’ appeal of the
Department’s permit decision for November 5, 2014, and stated that “[i]n the event
dispositive motions are timely filed, the Board will hear them on October 8, 2014, as
part of the Board meeting beginning at 5:30 p.m.” The Board published an amended
notice in the Albuquerque Journal that reflected the new date that the hearing would
take place. The notice stated that “public comment of a non-technical nature” would
be heard at the rescheduled hearing on November 5, 2014. The amended notice further
stated that “[i]n the event pre-hearing motions are timely filed, the Board will conduct
a motion hearing on October 8, [2014], as part of a Board meeting that will begin at
5:30 p.m.”
{6} 	Respondents each filed a motion for summary judgment, contending that the
Board was required to uphold the Department’s issuance of the permit because neither
the AQCA nor any regulations the Board had promulgated in accordance therewith
permitted the modification or denial of a construction permit based on Petitioners’
health concerns and the putative opinion of the expert witness they intended to call at
the Board’s hearing on the petition. After hearing argument from the parties on the
motions at its regularly-scheduled hearing on October 8, 2014, the Board granted

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summary judgment to Respondents by a vote of six to one and vacated the hearing on
the petition scheduled for November 5, 2014. Petitioners appeal.
STANDARD OF REVIEW
{7} 	We have statutory jurisdiction to review an appeal taken by “[a]ny person
adversely affected by an administrative action” by the Board. Section 74-2-9(A). We
may set aside the Board’s action if it is “(1) arbitrary, capricious or an abuse of
discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not
in accordance with law.” Section 74-2-9(C).
DISCUSSION
{8} 	We begin our discussion by sketching relevant provisions of the AQCA
governing appeals of the Department’s permitting decisions. We then address
Petitioners’ argument that the Board’s decision in this case violated the AQCA.
{9} 	The Environmental Improvement Board has statewide jurisdiction to administer
and enforce the AQCA except where, as here, a qualifying county or municipality has
“adopt[ed] an ordinance providing for the local administration and enforcement of the
[AQCA].” Section 74-2-4(A); see also § 74-2-3(B) (providing that “the jurisdiction
of the environmental improvement board extends to all areas of the state except within
the boundaries of a local authority”). Where a county or municipality has assumed
jurisdiction, it is required to establish local equivalents of the statewide agencies that

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would otherwise administer and enforce the AQCA: “(1) . . . a local board to perform,
within the boundaries of the local authority, those functions delegated to the
environmental improvement board”; and “(2) . . . a local agency [(in this case the
Department)] to administer and enforce the provisions of the AQCA within the
boundaries of the local authority that shall . . . perform all of the duties required of the
[State Environment D]epartment[.]” Section 74-2-4(A)(1), (2). See Bernalillo County,
N.M., Ordinance Ch. 30, art. II, §§ 30-32, 30-34 (1994) (establishing the Board and
the Department).
{10} 	Under the AQCA, any person who seeks to construct a “source” of air
contaminants must obtain a construction permit from the Department. See § 74-2-
7(A)(1); see also § 74-2-2(T) (defining “source” as “a structure, building, equipment,
facility, installation or operation that emits or may emit an air contaminant”). The
AQCA sets out minimal requirements for the Board’s regulations governing permit
applications, see § 74-2-7(B), as well as the grounds that the Department may use to
deny an application, see § 74-2-7(C), and permissible conditions that the Department
may attach to a permit approval under Section 74-2-7(D).
{11} 	The AQCA also allows any person who is “adversely affected” by the
Department’s permitting decision to petition the Board for review. Section 74-2-7(H).
Once a petition challenging a permit decision is filed,

6
the environmental improvement board or the local board shall hold a
hearing within sixty days after receipt of the petition. [The B]oard shall
notify the petitioner and the applicant or permittee, if other than the
petitioner, by certified mail of the date, time and place of the hearing. If
the subject of the petition is a permitting action deemed by the
environmental improvement board or the local board to substantially
affect the public interest, [The B]oard shall ensure that the public
receives notice of the date, time and place of the hearing. The public in
such circumstances shall also be given a reasonable opportunity to
submit data, views or arguments orally or in writing and to examine
witnesses testifying at the hearing. Any person submitting data, views or
arguments orally or in writing shall be subject to examination at the
hearing.
Section 74-2-7(I). The AQCA assigns the burden of proof to the petitioner, and
“[b]ased upon the evidence presented at the hearing, . . . [the B]oard shall sustain,
modify or reverse the action of the [D]epartment[.]” Section 74-2-7(K).
{12} 	Petitioners 	argue 	that 	Section 	74-2-7(I) 	provides 	that 	whenever 	the
Department’s permitting decision is challenged by the filing of a “timely petition,” the
Board “shall hold a hearing.” Id. According to Petitioners, Section 74-2-7(I)’s use of
the mandatory “shall[,]” combined with Section 74-2-7(I) through (K)’s detailed
requirements that the Board give the public notice of the hearing and an opportunity
to present evidence, and its requirement that the Board’s decision be “[b]ased upon
the evidence presented at the hearing” combine to obligate the Department to resolve
appeals from permitting decisions only after a public hearing has taken place. Section
74-2-7(K). Having failed to hold such a hearing in this case, Petitioners contend that

3This argument raises an interesting possible response, which Respondents did
not raise below or in their answer brief: Perhaps Petitioners’ challenge to the Board’s
use of summary procedure is better understood as a challenge to the validity of the
Board’s regulations. If so, it seems untimely: Judicial review of the Board’s actions
under Section 74-2-9 must be commenced less than thirty days from the date of the
action, and “[f]or appeals of regulations, the date of the action shall be the date of the
filing of the regulation.” Section 74-2-9(A), (B).
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we must vacate the Board’s decision.
{13} 	Although this argument seems straightforward on its face, it consists of two
distinct propositions. First, Petitioners broadly assert that the Board may not decide
a petition based only on written submissions, and must instead decide every petition
based on testimony and written submissions at an evidentiary hearing. This argument
calls into question the Board’s use of pre-hearing procedures which require that
technical evidence be submitted in advance of a hearing on a petition, since Section
74-2-7(K) requires the Board to reach its decision “[b]ased upon the evidence
presented at the hearing[.]” (Emphasis added.) It also calls into question the Board’s
expedited procedure under 20.11.81.20(A) NMAC, which allows the Board to decide
a petition based on “legal arguments presented in written briefs” and to “limit
presentations at the hearing to oral arguments by parties and interested participants.”
Id. This provision arguably denies “[t]he public . . . a reasonable opportunity to submit
data, views or arguments orally or in writing and to examine witnesses testifying at
the hearing.” Section 74-2-7(I). 3

8
{14} 	Petitioners’ second, narrower position is that whatever the validity of the
Board’s use of summary procedure, it failed to provide the public with sufficient
notice of its right to participate in the Board’s hearing on Respondents’ motions for
summary judgment. We find it unnecessary to address Petitioners’ first, broader,
position, because we agree with Petitioners’ argument on this narrower ground, and
that is enough to decide this appeal. We explain our reasoning in the following
paragraphs.
{15} 	The Board itself concluded that the petition at issue in this appeal would
substantially affect the public interest, so the Board was required to “ensure that the
public receives notice of the date, time and place of the hearing . . . [and] a reasonable
opportunity to submit data, views or arguments orally or in writing and to examine
witnesses testifying at the hearing” on the petition. Section 74-2-7(I). The amended
public notice the Board published in the Albuquerque Journal reads in relevant part
as follows:
A hearing before the Albuquerque-Bernalillo County Air Quality Control
Board (Air Board), previously scheduled for September 10th and 11th,
2014, is now scheduled to begin on Wednesday, November 5, 2014 at
9:00 a.m. and continue as necessary through November 6th.
. . . .
PUBLIC COMMENT of a non-technical nature: Wednesday,
November 5, 2014, 5:00 pm to 5:30 pm or longer as necessary to
accept all public comment offered (per 20.11.81.14.I.(2)). The Hearing

4We note that the amended public notice’s description of the “pre-hearing
motions hearing” is similar to the amended prehearing order’s description of the same
hearing, except that the public notice omits the amended prehearing order’s
characterization of the pre-hearing motions as possibly “dispositive.” Compare
Amended Prehearing Order (“[i]n the event dispositive motions are timely filed, the
Board will hear them on October 8, 2014, as part of the Board meeting beginning at
5:30 p.m.”), with Amended Public Notice (“In the event pre-hearing motions are
timely filed, the Board will conduct a motion hearing on October 8, as part of a Board
meeting that will begin at 5:30 p.m.”).
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Officer may take public comment at other times throughout the hearing
as necessary.
. . . .
MOTION HEARING: In the event pre-hearing motions are
timely filed, the Board will conduct a motion hearing on October 8, as
part of a Board meeting that will begin at 5:30 p.m.
In our view, this notice plainly fails to inform the public that the Board might well
resolve the appeal by use of summary procedure prior to the November 5, 2014,
public hearing.4 The amended public notice makes no suggestion that the “pre-hearing
motions” that the Board would possibly entertain at its regularly-scheduled meeting
could be dispositive and result in cancellation of the noticed public hearing. The
amended notice suggests just the opposite: that the Board would not decide the
petition until it heard public comment at a hearing scheduled for November 5, 2014.
As such, the public was deprived of a reasonable opportunity to participate in the
proceeding. Pursuant to Section 74-2-7(I), therefore, the Board’s decision is contrary
to law and must be vacated.

10
{16} 	Respondents offer two arguments in opposition to this conclusion. First,
Respondents contend that the Board was permitted to dispose of the petition using
summary judgment under two provisions in the Board’s regulations: 20.11.81.12(A)
NMAC, which provides that “[i]n the absence of a specific provision in 20.11.81[. 1
to .20] NMAC governing an action, the [B]oard and the [B]oard’s hearing officer may
look to the New Mexico Rules of Civil Procedure . . . for guidance[;]” and
20.11.81.12(B)(1) NMAC, which permits the Board to “specify procedures in addition
to, or that vary from the procedures provided in 20.11.81 NMAC in order to expedite
the efficient resolution of the action.” But under 20.11.81.12(A) NMAC, the Board
may not look to the Rules of Civil Procedure if doing so would “extend or otherwise
modify the authority and jurisdiction of the board.” Id. 20.11.81.12(B)(1) NMAC
contains a similar limitation: the Board may not vary its procedures if doing so creates
a “conflict with the act or the regulations, or prejudice the rights of any party.” Id.
{17} 	The upshot of these regulations and Section 74-2-7(I)’s mandatory requirement
that the Board “ensure that the public receives notice of the date, time and place of the
hearing” on a petition is that the Board may not decide a petition without giving the
public notice and an opportunity to weigh in on the petition. Id. (emphasis added).
This requirement is reflected in the Board’s existing regulations relating to evidentiary
hearings, 	see 	20.11.81.14(H)(2) 	NMAC, 	and 	expedited 	decisions. 	See

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20.11.81.20(A)(2) NMAC. Whatever the merit of the Board’s conclusion that its
regulations governing permit appeals did not “govern” Respondents’ motions for
summary judgment, the Board may not use the absence of a provision requiring public
notice in Rule 1-056 NMRA as a justification for ignoring the straightforward
requirement in Section 74-2-7(I) requiring such notice to be given. When an agency
is required by statute to provide public notice of a hearing, that notice must “fairly
apprise[] the average citizen . . . with the general purpose of what was contemplated.”
Nesbit v. City of Albuquerque, 1977-NMSC-107, ¶ 9, 91 N.M. 455, 575 P.2d 1340.
If the notice is “ambiguous, misleading or unintelligible to the average citizen, it is
inadequate to fulfill the statutory purpose of informing interested persons of the
hearing so that they may attend and state their views.” Id. The notice at issue plainly
fails this test: it does nothing to apprise the reader that the “pre-hearing motions
hearing” would be the one and only hearing on the petition. And it affirmatively
misleads the reader by suggesting that the public would be given an opportunity to
comment on the petition at the November 5, 2014 hearing, when in fact the hearing
was never held. To say the least, misinformation does not comport with the publicly
inclusive spirit of the applicable statutory framework.
{18} 	The City nevertheless contends that the Board provided sufficient notice to the
public because “the August 3, 2014 [amended] notice included instructions for

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persons other than parties who wished to participate to submit an entry of appearance
and explained how to file a notice of intent.” The City points out that if interested
members of the public filed an entry of appearance or notice of intent, they would
have received individual notice of Respondents’ motions for summary judgment and
the possibility that Petitioners’ appeal would be decided prior to the scheduled
November 5, 2014 hearing. See 20.11.81.14(G) NMAC. But the problem with this
argument is that it overlooks the central deficiency in the amended notice: it plainly
suggests that the Board would consider “public comment of a non-technical nature”
at the November 5, 2014 hearing, which the Board never held. A member of the public
reading this notice thus would have reasonably believed and relied on the amended
notice’s assertion that he or she would have an opportunity to communicate his or her
views to the Board at this hearing without having to submit a notice of intent or enter
their appearance. Having failed to hold the hearing, the Board’s amended notice is
contrary to the requirement in Section 74-2-7(I) that the public be given notice of, and
an opportunity to participate in, its hearing on a petition relating to a permit which
affects the public interest.
{19} 	Respondents also argue that any deficiency in the Board’s notice did not
prejudice Petitioners’ case, so we should nonetheless affirm. In other words,
Respondents contend that the Board’s decision (and this appeal) would turn out the

13
same even if the Board had held a hearing on the merits and considered public
comment on the petition. See P.R. Aqueduct & Sewer Auth. v. U.S. EPA, 35 F.3d 600,
606 (1st Cir. 1994) (upholding the use of summary procedure in agency adjudication
where “it appears conclusively from the papers that, on the available evidence, the
case only can be decided one way”). Indeed, this Court too has accepted as a general
proposition that unless the party challenging an agency’s violation of procedural rules
or regulations can demonstrate prejudice, we will not reverse an agency decision that
would have been the same in the absence of the violation. See BC & L Pavement
Servs., Inc. v. Higgins, 2002-NMCA-087, ¶ 38, 132 N.M. 490, 51 P.3d 533, overruled
on other grounds by Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n,
2003-NMSC-005, 133 N.M. 97, 61 P.3d 806.
{20} 	Pursuant to the authority it cites, Respondents would have us evaluate the
merits of the parties’ arguments on appeal, and uphold the Board’s decision if, as they
contend, Petitioners’ health-and-traffic-related concerns cannot as a matter of law
furnish a basis for modifying or denying a permit under the AQCA. See generally
Colonias Dev. Council v. Rhino Envtl. Servs., 2005-NMSC-024, ¶¶ 29-35, 138 N.M.
133, 117 P.3d 939 (noting that an administrative agency’s “authority to address”
health and safety concerns “requires a nexus to a regulation”). As counsel for the City
explained at oral argument, the public’s right to notice and an opportunity to comment

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is contingent on a person who participated in the Department’s permitting action
lodging a challenge to the Board’s issuance of a permit. See § 74-2-7(H). Otherwise,
the Department’s permitting decision is “conclusive” as to the permittee’s compliance
with the AQCA. See § 74-2-7(L). Because of the contingent nature of public
participation in permit appeals to the Board, Respondents maintain that the Board
cannot be faulted for failing to provide sufficient notice to the public when the
challengers’ underlying appeal would have failed in any event.
{21} 	We reject this argument. First, it is by no means certain, as Respondents
contend, that the Board’s failure to solicit public input on the petition had no effect
on the outcome of its decision. It may be that the party challenging a decision by the
Department carries the burden of proof on appeal before the Board. Section 74-2-
7(K). But the AQCA unambiguously requires the Board to consider “data, views or
arguments” offered at a public hearing when a permitting action “substantially
affect[s] the public interest[.]” Section 74-2-7(I). Since the Board must decide a
petition “[b]ased upon the evidence presented at the hearing,” Section 74-2-7(K), it
follows that the Board may modify or overturn a permit based on evidence presented
by the public, not just the party who challenged the Department’s decision in the first
instance. So even if Petitioners failed to present sufficient evidence to justify
overturning or modifying the Department’s permit decision, it does not follow that

15
any evidence the public could have presented would be deficient in the same way.
{22} 	To be sure, the Board’s own regulations allow it to require that any “technical”
evidence be presented before the hearing, see 20.11.81.14(H)(1), (I)(2) NMAC, and
its notice to the public in this case says as much. Respondents’ argument on the merits
is that the only evidence that could have furnished a basis for overturning or
modifying the Department’s permitting decision was evidence concerning the
proposed gas station’s compliance with various state and federal regulations, which
is technical in nature. Since Petitioners failed to present any such evidence and no
member of the public signaled any intent to present additional technical evidence prior
to the motion hearing, Respondents’ argument is that we should excuse the Board’s
failure to hold a hearing on November 5, 2014, where the public would only be
allowed to present “comment of a non-technical nature[.]”
{23} 	But even if the public would have been disallowed from presenting any
evidence that would have justified overturning or modifying the Department’s
permitting action, we conclude that the Board’s failure to provide the public with
sufficient notice requires reversal in this case for a second, independent reason.
Respondents would have us read language into the AQCA that allows the Board to
dispense with the requirement that it allow the public to present its views or arguments
whenever it determines that the public’s views or comments will have no nexus to an

16
applicable regulation. See In re Rhino Envtl. Servs., 2005-NMSC-024, ¶ 29. But the
AQCA unambiguously requires the Board to consider the public’s “views or
arguments” when a permitting action “substantially affect[s] the public interest[.]”
Section 74-2-7(I). Accordingly, the issue of the Board’s need to consider public
comment turns on whether a petition affects the public interest, not whether the public
will provide evidence that is relevant to the Board’s ultimate decision. Id. Thus, in
permitting actions that substantially affect the public interest, the Legislature has
recognized the intrinsic value of public input separate from its technical relevance by
requiring the Board to consider public input prior to reaching a decision. “When a
statute makes sense as written, we will not read in language that is not there.” State
v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. The Board’s failure
to provide the public with notice of its hearing on Petitioners’ challenge is contrary
to the dictates of the statute and undermines its apparent purpose—giving the public
an opportunity to comment on a challenge to a permitting decision which substantially
affects the public interest. Accordingly, its decision must be vacated.
CONCLUSION
{24} 	Section 74-2-7(I) requires the Board to publish a notice and afford the public
an opportunity to participate in all petitions challenging permit decisions which
substantially 	affect 	the 	public 	interest. 	The 	Board’s 	decision 	upholding 	the

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Department’s issuance of a permit to Smith’s was contrary to law because the Board
did not provide the public with notice or an opportunity to provide input on the
Petition, as Section 74-2-7(I) unambiguously requires.
{25} 	The decision of the Board is vacated, and the petition is remanded for
proceedings consistent with this opinion.
{26} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
STEPHEN G. FRENCH, Judge