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Communities For Clean Water v. New Mexico Water Quality Control Commission

Court of Appeals of New Mexico

December 27, 2017

COMMUNITIES FOR CLEAN WATER, Appellant,
v.
NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee, and NEW MEXICO ENVIRONMENT DEPARTMENT and LOS ALAMOS NATIONAL SECURITY, LLC, Interveners.

         ADMINISTRATIVE APPEAL FROM THE NEW MEXICO WATER QUALITY CONTROL COMMISSION Jeffrey N. Holappa, Hearing Officer

          New Mexico Environmental Law Center JaimiePark 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, PA. Louis W. Rose Kari E. Olson Santa Fe, NM Office of Laboratory Counsel I Los Alamos National Laboratory I Timothy A. Dolan for Intervenor Los Alamos National Security, LLC.

          OPINION

          JULIE J. 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." NM Mining Ass'n v. KM. Water Quality Control Comm'n 2007-NMCA-010, ¶ 11, 141 KM. 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. NM. 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 ...


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