February 23, 2015 – Citizen Action New Mexico v. New Mexico Environment Department, No. 33,517

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: February 18, 2015

NO. 33,517

CITIZEN ACTION NEW MEXICO,
Plaintiff-A ppellant,

V.

NEW MEXICO ENVIRONMENT
DEPARTMENT,

Defendant- Appellee,
and
SANDIA CORPORATION,
Intervenor- Appellee.

APPEAL FROM THE NEW MEXICO ENVIRONMENT DEPARTMENT
Tom Blaine, Director

Robert P. McNeill
Albuquerque, NM

for Appellant

New Mexico Environment Department
William G. Grantham, Special Assistant Attorney General
John B. Verheul, Special Assistant Attorney General
Santa Fe, NM
for Defendant-Appellee
Sandia Corporation
Amy J. Blumberg
Albuquerque, NM
Montgomery & Andrews, P.A.
Jeffrey J. Wechsler
Louis W. Rose
Lara Katz
Santa Fe, NM
for Intervenor-Appellee

OPINION
SUTIN, Judge.
{1} 	Appellant Citizen Action New Mexico appeals from a January 8, 2014, letter
reflecting the New Mexico Environment Department’s decision to approve the Sandia
National Laboratories Long-Term Monitoring and Maintenance Plan for the Mixed
Waste Landfill (the long-term plan). 	Pursuant to NMSA 1978, Section 74-4-14
(1992), Citizen Action appeals the Department’s decision directly to this Court.
{2} 	Citizen Action argues that the Department’s approval of the long-term plan in
the January 8, 2014, letter was unlawful because the long-term plan disregarded a
condition of a 2005 final order previously issued by the Secretary of the Department.
That condition required Sandia to submit a report every five years, the first of which,
according to Citizen Action, was due in May 2010. 	The purpose for the five-year
report was to re-evaluate the feasibility of excavation of the mixed-waste landfill and
to analyze the continued effectiveness of a Department-ordered remedy. 	Citizen
Action argues further that by approving the long-term plan, the Department
unlawfully modified Sandia’s hazardous waste permit (the permit) by changing
particular aspects of the groundwater-monitoring network. 	The Department and
Sandia filed answer briefs refuting Citizen Action’s substantive arguments but also
arguing that the appeal is untimely.

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{3} 	In a letter issued and made publicly available on October 14, 2011, the
Department required Sandia’s first five-year report to be filed five years after the
Department approved the long-term plan. Because we conclude that the October 2011
letter constituted a final agency action regarding the time-line of the five-year report,
we hold that Citizen Action’s appeal is untimely as to the five-year report issue, and
we do not consider the merits of the appeal. Further, because it is unsupported by the
record, we reject Citizen Action’s argument that the long-term plan, approved in the
Department’s January 2014 letter, effectively modified the permit in regard to the
groundwater-monitoring network. We hold that Citizen Action’s appeal provides no
basis for reversal, and we affirm the Department’s approval of the long-term plan.
BACKGROUND
{4} 	In Citizen Action v. Sandia Corporation, this Court affirmed the final order
issued in 2005 (the 2005 order) by the Secretary of the Department granting Sandia’s
request for a Class 3 permit modification for corrective measures for the mixed-waste
landfill located at Sandia. 2008-NMCA-031, ¶¶ 1-2, 9, 143 N.M. 620, 179 P.3d 1228.
In Citizen Action, a case involving the same parties that are involved in this case, we
provided historical and factual background information related to Sandia, to the
mixed-waste landfill, and to the process by which the Secretary selected the corrective
measures (hereafter, the remedy) to be employed at the mixed-waste landfill and to

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the 2005 order. 	Id. ¶¶ 2-9. We do not reiterate that background information here.
Instead, we limit our background discussion to the procedural developments that have
since occurred, and we only discuss facts that were recited in Citizen Action when
necessary for context in this appeal.
{5} 	The 2005 order approving a permit modification mandated that the remedy
would be a vegetative soil cover with a bio-intrusion barrier. The 2005 order and the
corresponding permit modification also mandated a number of substantive conditions
including the following, among others. Within 180 days of the 2005 order, Sandia
was required to submit a Corrective Measures Implementation Plan (CMI plan)
relating to the mixed-waste landfill for the Department’s approval detailing the design,
construction, operation, maintenance, and performance monitoring for the remedy and
a schedule for implementation including, among other things, a “comprehensive fate
and transport model that studies and predicts future movement of contaminants in the
landfill and whether they will eventually move further down the vadose zone and/or
to groundwater[.]” Within 180 days after the remedy was implemented, Sandia was
to submit a Corrective Measures Implementation Report (CMI report) for the
Department’s approval. And within 180 days of the Department’s approval of the
CMI report, Sandia was to submit its long-term plan, which was approved by the
January 2014 letter from which Citizen Action appeals, for the Department’s approval.

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The long-term plan was to include “all necessary physical and institutional controls
to be implemented in the future” and “contingency procedures that must be
implemented by [Sandia] if the remedy . . . fails to be protective of human health and
the environment.” Before approving the CMI plan, the CMI report, or the long-term
plan, the Department and Sandia were to provide a process by which interested
members of the public could review and comment upon them, and the Department was
required to review, consider, and respond to those comments.
{6} 	Additionally, the 2005 order required Sandia to “prepare a report every [five]
years, re-evaluating the feasibility of excavation and analyzing the continued
effectiveness of the selected remedy” (the five-year report). The five-year report was
required to “include a review of the documents, monitoring reports and any other
pertinent data, and anything additional required by [the Department].” In each five-
year report, Sandia was also required to “update the fate and transport model for the
site with current data, and re-evaluate any likelihood of contaminants reaching
groundwater.” Further, the five-year report was required to “detail all efforts to ensure
any future releases or movement of contaminants are detected and addressed well
before 	any 	effect 	on 	groundwater 	or 	increased 	risk 	to 	public 	health 	or 	the
environment.” Before each five-year report was approved by the Department, it and
its supporting information were required to be readily available to the public, and the

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Department was to take public comments on the report to which it would respond in
its final approval. The 2005 order did not specify when the first five-year report was
due nor did it specify what action or decision would trigger the commencement of the
five-year reporting period.
{7} 	Sandia submitted a CMI plan in November 2005, and the Department approved
it in December 2008. The remedy, vegetative soil cover with bio-intrusion barrier,
was installed in 2009, and in January 2010 the Department of Energy (DOE) on behalf
of Sandia timely submitted a CMI report. After the requisite review and comment
period, the Department approved the CMI report in its letter dated October 14, 2011.
The approval letter triggered the requirement that Sandia submit its long-term plan
within 180 days. In addition to notifying Sandia that it was required to submit the
long-term plan within 180 days, the October 14, 2011, letter stated that: “Upon [the
Department’s] approval of the [long-term plan], the first five-year period for re-
evaluating the feasibility of excavation and analyzing the effectiveness of the remedy,
required under the [2005 order], will begin. This will allow for monitoring data to be
acquired under the [long-term plan] to be available for the purpose of conducting the
evaluation.” The October 14, 2011, letter was posted on the Department’s website
and placed in Sandia’s publicly accessible file.

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{8} 	Sandia originally submitted a long-term plan on September 25, 2007, but that
version was withdrawn and, within 180 days of the Department’s approval of the CMI
report, Sandia re-submitted its long-term plan on March 23, 2012. It is the March 23,
2012, version of the long-term plan that is at issue in this appeal.
{9} 	The stated purpose of the long-term plan “is to ensure that the [mixed-waste
landfill], with the [remedy in place], remains protective of human health and the
environment.” In addition to detailing the scientific and technical means by which its
purpose will be met, the long-term plan addressed the requirement of the five-year
report, stating in relevant part that:
[t]he 	first 	five-year 	re[-]evaluation 	period 	will 	begin 	upon 	[the
Department’s] approval of this [mixed-waste landfill long-term plan]
(Kieling October 2011). The first [five-year report] will be submitted to
[the Department] five years after approval of the [long-term plan] and
include monitoring results for the first four years under the [long-term
plan] to allow time to prepare and submit the report.
“Kieling October 2011” within the parentheses is a reference to the October 14, 2011,
letter approving the CMI report that was signed by John E. Kieling, Acting Chief of
the Department’s Hazardous Waste Bureau.
{10} 	In September 2012, the Department issued a notice of public comment period
and public dialogue meeting regarding the long-term plan. 	In October 2012, the
Department, assisted by the DOE and Sandia, held a public meeting at which it
provided information on the long-term plan and answered questions. The Department

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also conducted a 150-day public comment period and provided responses to the
public’s comments. 	After these proceedings, the Department issued its letter
approving the long-term plan on January 8, 2014.
{11} 	Citizen Action appeals the Department’s approval of the long-term plan
arguing, primarily, that the Department used the approval of the long-term plan to
unlawfully “circumvent,” “disregard,” “delay,” “ignor[e],” and modify the provision
of the 2005 order that, in Citizen Action’s view, “explicit[ly]” required Sandia to file
the first five-year report on May 26, 2010, five years after the 2005 order. Citizen
Action also raises what we construe to be a second issue, that is, that the long-term
plan unlawfully modified the permit by changing the number, location, and depth of
“upgradient and downgradient” wells of the groundwater-monitoring network.
{12} 	Because we conclude that Citizen Action failed to timely appeal from the
October 2011 letter, in which the Department made the at-issue determination
regarding the five-year reporting period, we decline to consider the propriety of the
determination. Citizen Action’s argument that the long-term plan modified the permit
as it pertained to the groundwater-monitoring network is not supported by the record,
and we affirm the Department’s approval of the long-term plan in that regard.
DISCUSSION
The Timeliness of the Appeal and the Ambiguous Due Date of the Five-Year
Report in the 2005 Order

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{13} 	Sandia and the Department argue that the 2005 order was ambiguous as to when
the first five-year report was due and that Citizen Action waived its right to raise the
issue by failing to request clarification regarding the five-year report due date in the
administrative proceedings related to the 2005 order or in the appeal from the 2005
order. Alternatively, they argue that because the Department’s October 2011 letter
reflected the Department’s final determination regarding when the first five-year
report was due, by failing to appeal from the October 2011 letter, Citizen Action
waived its right to appeal that determination. Sandia and the Department argue that
Citizen Action’s appeal is untimely and should not be considered. We review issues
of waiver and timeliness de novo. Clinesmith v Temmerman, 2013-NMCA-024, ¶ 13,
298 P.3d 458 (stating that timeliness issues are reviewed de novo); Concerned
Residents of Santa Fe N., Inc. v. Santa Fe Estates, Inc., 2008-NMCA-042, ¶ 22, 143
N.M. 811, 182 P.3d 794 (stating that a waiver issue is reviewed de novo).
{14} 	Citizen Action argues that the 2005 order unambiguously required the first five-
year report to be submitted by May 26, 2010, five years after the date of the 2005
order. The obvious implication of this argument is that because the 2005 order was
unambiguous, Citizen Action would have had no reason to request clarification
regarding the due date of the first five-year report during the administrative
proceedings or the appeal related to the 2005 order. Further, Citizen Action argues

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that the Department’s October 2011 letter “did not constitute adequate notice to a
party that might wish to appeal an administrative decision.”
{15} 	As noted in the background of this Opinion, the 2005 order did not specify
when the first five-year report was due, nor did it identify the action that would trigger
the five-year reporting period. The 2005 order’s silence on the matter of when Sandia
was required to submit its first five-year report led the Department to conclude that
the order was ambiguous in regard to the five-year reporting period, and it led Citizen
Action to conclude that the first five-year report was due within five years of the 2005
order. For the purpose of addressing the timeliness of the appeal, we assume without
deciding that these disparate interpretations of the 2005 order were both reasonable
and that the 2005 order was therefore ambiguous as to when the first five-year report
was due. Lawton v. Schwartz, 2013-NMCA-086, ¶ 21, 308 P.3d 1033 (recognizing
that “an ambiguity is created when provisions are reasonably and fairly susceptible
[of] two constructions” (omission, internal quotation marks, and citation omitted)); cf.
Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 48, 123 N.M. 752, 945 P.2d 970
(recognizing that silence in a contract created an ambiguity).
{16} 	Because the 2005 order could reasonably have led Citizen Action to have
understood that the first five-year report was unequivocally due in 2010, it would be
unfair for this Court to hold that Citizen Action was required, in the proceedings

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related to the 2005 order, to request clarification of an ambiguity that it did not
perceive. Accordingly, we reject the Department’s and Sandia’s argument that Citizen
Action waived or otherwise forewent its opportunity to raise the issue of the five-year
report’s due date by not addressing it in the proceedings related to the 2005 order,
including the appeal. Nevertheless, we conclude that because Citizen Action failed
to appeal from the Department’s October 2011 letter, its appeal related to the due date
of the five-year report is untimely.
{17} 	Section 74-4-14(A) provides that “[a]ny person who is or may be affected by
any final administrative action . . . may appeal to the [C]ourt of [A]ppeals for further
relief within thirty days after the action.” The phrase “final administrative action” is
not defined. 	See generally NMSA 1978, § 74-4-3 (2010) (providing definitions of
terms used in the Hazardous Waste Act, NMSA 1978, §§ 74-4-1 to -14 (1977, as
amended through 2010)). 	Therefore, we determine finality “based on pragmatic
consideration of the matters at issue and analysis of whether the administrative body
has in fact finally resolved the issues.” N.M. Indus. Energy Consumers v. N.M. Pub.
Serv. Comm’n, 1991-NMSC-018, ¶¶ 1, 24, 111 N.M. 622, 808 P.2d 592 (stating the
standard used to determine finality in the context of a direct appeal to our Supreme
Court from an agency decision). Our “pragmatic consideration” of the administrative
agency’s action includes considering, among other things, “whether certain issues will

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be revisited” by the agency and whether the agency will engage in “further fact
finding” that “will elicit more evidence illuminating the issues[.]” Id. ¶¶ 24, 26.
{18} 	The Department’s October 2011 letter does not support an inference that the
Department intended to further consider any matter as to the approval of the CMI
report, including the issue as to the timing of the long-term plan and the five-year
report. 	See id. 	¶ 26. 	The October 2011 letter unequivocally reflected the
Department’s determination that the five-year reporting period “will begin” upon the
Department’s approval of the long-term plan. 	See id. (stating that one factor that
weighs heavily in considering whether an agency decision is final is what the agency
has said it “will do”). 	It also provided an explanation for its decision, stating that
commencing the five-year reporting period upon approval of the long-term plan would
“allow for monitoring data to be acquired under the [long-term plan] to be available
for the purpose of conducting the [five-year] evaluation[,]” thereby reflecting that the
Department’s decision was based, at least in part, on its consideration of facts relevant
to the question of when the five-year report should be due. 	Cf. Paule v. Santa Fe
Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 9, 138 N.M. 82, 117 P.3d 240
(stating that a final order is characterized by a resolution of factual issues).
{19} 	In sum, the Department’s October 2011 letter reflected that it had considered
the relevant facts and determined that the five-year report would be due five years

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after the long-term plan was approved. The Department’s October 2011 letter did not
suggest that the matter of the due date of the first five-year report would be revisited
or subject to change based upon previously unconsidered facts or evidence. As such,
we conclude that it constituted the Department’s “final administrative action” in that
regard. Because we conclude that the Department’s October 2011 letter reflected its
final decision regarding when the five-year reporting period would commence, the
thirty-day time frame within which Citizen Action could have appealed that decision
has long expired. See § 74-4-14(A) (stating that a final administrative action may be
appealed within thirty days after the action).
{20} 	Citizen Action attempts to overcome its failure to timely appeal from the
October 2011 letter by reasoning that because Sandia referenced the October 2011
decision in its long-term plan, the Department’s January 2014 letter approving the
long-term plan constituted its “final administrative action” regarding the due date of
the five-year report. We are not persuaded by Citizen Action’s reasoning.
{21} 	Unlike the October 2011 letter approving the CMI report and also stating the
Department’s determination that the five-year reporting period would commence upon
the Department’s approval of the long-term plan, the Department’s January 2014 letter
contained no reference to the five-year report, nor did it reflect that the Department
had undertaken any further decision-making in regard to the due date of the five-year

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report. To the extent that the Department’s January 2014 letter implicitly approved
Sandia’s stated intention to submit the five-year report within the time-frame stated
in the October 2011 letter, its approval was directed at Sandia’s plan to implement the
October 2011 action; it was not itself an appealable action on the question of the five-
year report. 	See Chem. Weapons Working Grp., Inc. v. United States Dep’t of the
Army, 111 F.3d 1485, 1494 (10th Cir. 1997) (recognizing the distinction between a
final agency action and the implementation of the decision reflected in the final
agency action). We reject Citizen Action’s claim that its appeal of the Department’s
decision to require the first five-year report five years after its approval of the long-
term plan was appropriately taken from the Department’s approval of the long-term
plan.
{22} 	Further, in responding to the Department and Sandia regarding the timeliness
of its appeal, Citizen Action claims that it did not have adequate notice of the October
2011 letter. 	Specifically, Citizen Action states that it was not aware of the
Department’s decision regarding the commencement of the five-year reporting period
until either March 2012, when Sandia submitted the long-term plan that noted that
“[t]he first five-year . . . period will begin upon [the Department’s] approval of this
[long-term plan,]” or May 2012, when Citizen Action obtained a copy of the

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Department’s October 2011 letter via an Inspection of Public Records Act request.
Citizen Action’s lack-of-notice argument is unpersuasive in the context of this case.
{23} 	Pursuant to the terms of the 2005 order, the public’s continued access to
information and ability to participate in future decisions regarding the remedy was
assured, among other ways, by requiring Sandia and the Department to “provide a
convenient method for the public to review . . . major documents [including the CMI
plan, the CMI report, and the long-term plan]” related to the mixed-waste landfill
“including but not limited to posting the documents on a publicly accessible website.”
Citizen Action, 2008-NMCA-031, ¶ 38 (alterations, internal quotation marks, and
citation omitted). 	The Department complied with this directive when it issued its
October 2011 letter by posting the letter to its publicly available website and in
Sandia’s 	publicly 	accessible 	file. 	See 	http://www.nmenv.state.nm.us/HWB/
snlperm.html#MWLCMIReport (last visited January 23, 2015). Citizen Action does
not argue or provide authority to support the proposition that the Department was
required to provide notice of its October 2011 letter by doing anything more than
posting it on the publicly accessible website.
{24} 	We conclude that, as a result of the letter having been posted on the
Department’s website and in Sandia’s publicly accessible file, Citizen Action was or
at least should have been aware of the October 2011 approval letter at the time that it

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was issued. See United States v. Bank of America, 303 F.R.D 114, 119 (D.D.C. 2014)
(holding that an appellant had actual or constructive notice of a judgment for purposes
of timely appealing it where the judgment was available via the court’s publicly
accessible data base and via a website especially set up for the settlement). Even were
we to give Citizen Action the benefit of the doubt and assume that, owing to
circumstances beyond its control, Citizen Action did not learn of the Department’s
decision until March or May 2012, Citizen Action presents no justification for not
having filed an appeal immediately thereafter. See Clinesmith, 2013-NMCA-024, ¶
37 (recognizing that the appellate court may review an untimely appeal, “but only in
the most unusual circumstances beyond the control of the parties” (alteration, internal
quotation marks, and citation omitted)).
{25} 	Having failed to timely appeal from the October 2011 letter within thirty days
of its publication, or at the very least, within thirty days of having learned of the
decision in March or May 2012, Citizen Action’s appeal filed on February 3, 2014,
is untimely. Accordingly, we decline to consider it. See id. ¶ 43 (declining to review
an appeal that was filed over five years after the at-issue order was entered).
The Groundwater-Monitoring Issue
{26} 	Citizen Action claims, without citation to the record to support its assertion, that
“[t]he March 2012 [long-term plan] changed the number, location[,] and depth of

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upgradient and downgradient wells of the groundwater monitoring network” thereby
modifying the permit. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701
(recognizing that the appellate court “has no duty to review an argument that is not
adequately developed” and is unsupported by citation to the record). Sandia argues
that Citizen Action’s argument lacks merit because “the [p]ermit . . . does not include
specific monitoring requirements such as the number, location, and depth of wells.”
In support of its argument, Sandia points to the relevant section of the permit, as
modified according to the 2005 order. Because Citizen Action fails to respond to this
argument or to provide record support for its argument in its reply, we conclude that
Citizen Action concedes the point that Sandia has made. 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). This issue provides no basis for reversal.
CONCLUSION
{27} 	Because Citizen Action has demonstrated no grounds for reversal, we affirm the
Department’s decision reflected in its January 2014 letter to approve the long-term
plan.
{28} 	IT IS SO ORDERED.

JONATHANB. SUTIN, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

CYNTHIA A. FRY, Judge

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