APPEAL FROM THE NEW MEXICO WATER QUALITY CONTROL COMMISSION
Jeffrey N. Holappa, Hearing Officer
Mexico Environmental Law Center JaimiePark Jonathan Block
Eric Jantz Douglas Meiklejohn Santa Fe, NM for Appellant
Mexico Water Quality Control Commission Special Assistant
Attorney General Christopher Atencio, Assistant General
Counsel Albuquerque, NM for Appellee
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.
J. VARGAS, Judge.
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.
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 126.96.36.19908 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
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.
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.
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
weeks later, on July 27, 2015, NMED issued the permit
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 188.8.131.52(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.
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).
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 ...