Cmtys. for Clean Water v. N.M. Water Quality Control Comm'n

413 P.3d 877

COMMUNITIES FOR CLEAN WATER, Appellant,

v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee,andNew Mexico Environment Department and Los Alamos National Security, LLC., Intervenors.

NO. A-1-CA-35253

Court of Appeals of New Mexico.

Filing Date: December 27, 2017

New Mexico Environmental Law Center, Jaimie Park, Jonathan Block, Eric Jantz, Douglas Meiklejohn, Santa Fe, NM, for Appellant.

New Mexico Water Quality Control Commission, Special Assistant Attorney General, Christopher Atencio, Assistant General Counsel, Albuquerque, NM, for Appellee.

New Mexico Environment Department, Special Assistant Attorney General, John Verheul, Assistant General Counsel, Albuquerque, NM, for Intervenor N.M. Environment Department.

Montgomery & Andrews, P.A., Louis W. Rose, Kari E. Olson, Santa Fe, NM, Office of Laboratory Counsel, Los Alamos National Laboratory, Timothy A. Dolan, for Intervenor Los Alamos National Security, LLC.

VARGAS, Judge.

{1} Communities for Clean Water (CCW) describes itself as a growing network of organizations whose mission is to ensure that "community waters which receive adverse impacts from [Los Alamos National Labs], its current operations and its legacy waste, are kept safe for drinking, agriculture, sacred ceremonies, and a sustainable future." CCW appeals from the final order of the Water Quality Control Commission (WQCC) sustaining the decision of the New Mexico Environment Department (NMED) to deny CCW's request for a public hearing on the water discharge permit application of the United States Department of Energy (DOE) and Los Alamos National Security, LLC (LANS) (collectively, DOE/LANS). Specifically, the parties disagree as to whether NMED has discretion to deny its request for a public hearing, and if so, whether CCW established a substantial public interest in the permit application, mandating a public hearing under the Water Quality Act (the Act), NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through 2013), and its corresponding regulations. We hold that while NMED has limited discretion to grant or deny a public hearing, the WQCC lacked substantial evidence to support its decision to sustain NMED's denial of CCW's request for a public hearing. We reverse.

BACKGROUND

{2} In December 2011, DOE/LANS applied for a discharge permit with the Ground Water Quality Bureau (Bureau) of NMED. Following an amendment in January 2014, the application became "administratively complete" under 20.6.2.3108 NMAC in December 2014. NMED issued a draft permit and proposed approval on January 22, 2015. In response to the proposed approval, DOE/LANS submitted comments on the draft permit and requested a hearing, expressing a hope that any concerns could be "resolved in advance of a public hearing" in which case it intended to "immediately withdraw the hearing request."

{3} CCW submitted its comments and requested a public hearing on March 2, 2015. On April 15, 2015, CCW, NMED, and DOE/LANS met to discuss the permit, after which CCW again requested a public hearing and submitted further comments.

{4} In May 2015, the Bureau issued a final draft of the permit. DOE/LANS submitted additional comments on the final draft. In response to the final draft of the permit, CCW again submitted substantive comments to the Bureau and submitted its third request for a public hearing in June 2015.

{5} Upon receipt of CCW's third request, the Bureau sent a memorandum to its Water Protection Division on July 8, 2015, recommending that CCW's requests for a public hearing be denied. The next day, DOE/LANS withdrew its request for public hearing. Two weeks later, NMED informed CCW by letter dated July 24, 2015, that its request for a hearing was denied. NMED explained that the secretary of NMED (secretary) had denied the request for a public hearing because the permit, as drafted, already contemplated community involvement and was in the public interest, stating:

It is the opinion of the Department that NMED has drafted a Discharge Permit that provides transparency and opportunity for community involvement at an unprecedented level. The proposed activity by LANL is intended to address historic impacts to groundwater and protect water resources and communities, and issuance of this Discharge Permit is in the public interest.

Three weeks later, on July 27, 2015, NMED issued the permit.

{6} CCW appealed the denial of its public hearing request and approval of the permit to the WQCC. Following a hearing on CCW's appeal, the WQCC sustained NMED's decision to deny CCW's request for a public hearing in a nine-to-two vote. The WQCC issued a final order pursuant to Section 74-6-5(Q) and 20.1.3.16(F)(3) NMAC, setting out its findings of fact and conclusions of law. It is CCW's appeal of the WQCC's decision that we now consider.

STANDARD OF REVIEW

{7} A decision of the WQCC will not be disturbed by this Court unless it acts in a manner that is: "(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law." Section 74-6-7(B). "A ruling that is not in accordance with law should be reversed if the agency unreasonably or unlawfully misinterprets or misapplies the law." N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n , 2007-NMCA-010, ¶ 11, 141 N.M. 41, 150 P.3d 991 (internal quotation marks and citation omitted). However, in considering whether the WQCC's actions were in accordance with the law, we note that interpretation of a statute is a matter of law that this Court reviews de novo, and we are not bound by NMED's or WQCC's interpretation of the relevant statutes. See id. (citing Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n , 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 ).

DISCUSSION

{8} Initially, we note that our review does not include a review of the merits of the permit. Instead, we limit our review to the procedures employed by NMED to grant the permit and whether they were implemented in accordance with the applicable statutes and regulations.

{9} The parties' arguments focus on the discretion of the secretary to deny a request for a public hearing on a draft permit under the Act and its promulgated regulations. While Section 74-6-5(G) (the statute) appears on its face to provide for a public hearing, stating, "[n]o ruling shall be made on any application for a permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit evidence, data, views or arguments orally or in writing and to examine witnesses testifying at the hearing," 20.6.2.3108(K) NMAC (the regulation) promulgated to effectuate the statute appears to limit the availability of a hearing to instances where a hearing is requested and the secretary finds a substantial public interest in the permit application. The regulation states,

Requests for a hearing shall be in writing and shall set forth the reasons why a hearing should be held. A public hearing shall be held if the secretary determines there is substantial public interest.

20.6.2.3108(K) NMAC ; see also 20.6.2.7(PP) NMAC (identifying the regulation's references to "the secretary" as references to the secretary of NMED).

The Act and WQCC Regulations

{10} In its passage of the Act, the Legislature gave the WQCC, as New Mexico's water pollution control agency, the responsibility of creating and implementing regulations aimed at preventing water pollution. See § 74-6-1 ; § 74-6-3; § 74-6-4. The Act requires the WQCC to adopt regulations governing the application for, public notice of, and the granting of, water quality permits. See § 74-6-5(D) ("After regulations have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the regulations."); Section 74-6-5(F) ("The commission shall by regulation develop procedures that ensure that the public ... shall receive notice of each application for issuance, renewal or modification of a permit."); Section 74-6-5(J) (granting the commission authority to impose conditions upon permits by regulation). Utilizing these powers, the WQCC promulgated regulations governing the NMED's duties to provide notice of permit applications to the public and established the circumstances under which members of the public are entitled to a public hearing on a permit application. See 20.6.2.3108 NMAC (setting out public notice and participation requirements). Specifically, the regulations promulgated by the WQCC provide for a public hearing on a permit application only after receipt of a written request setting out the reasons a hearing should be held and a determination by the secretary that a substantial public interest exists. See 20.6.2.3108(K) NMAC.

{11} The regulations promulgated by the WQCC provide that once the two regulatory prerequisites to a public hearing are satisfied, the hearing on a proposed discharge permit is intended to be conducted as a "fair and impartial adjudication of issues" in front of a hearing officer, who is tasked with assuring that "the facts are fully elicited[.]" 20.6.2.3110(E) NMAC. During a public hearing, the permit applicant presents testimony and undergoes examination in order to "prov[e] the facts relied upon ... justify the proposed discharge plan, ... and meet[ ] the requirements of the regulations [.]" 20.6.2.3110(G)(1) NMAC. All technical witnesses—both supporting or opposing issuance of the permit—then present testimony and are subject to examination, after which the general public may testify, and the permit applicant may present rebuttal testimony. See 20.6.2.3110(G)(2)-(4) NMAC. During the hearing, "all persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing." 20.6.2.3110(F) NMAC. "[T]he hearing officer may allow proposed findings of fact and conclusions of law and closing argument." 20.6.2.3110(I) NMAC. The hearing officer...