1

Certiorari Denied, No. 32,385, June 3, 2010

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-057

Filing Date: February 10, 2010 

Docket No. 28,857

IN THE MATTER OF THE APPLICATION 

OF CAMINO REAL ENVIRONMENTAL 

CENTER, INC. FOR THE RENEWAL AND

MODIFICATION OF A SOLID WASTE 

FACILITY PERMIT FOR THE CAMINO 

REAL LANDFILL

CAMINO REAL ENVIRONMENTAL 

CENTER, INC., 

Appellant-Petitioner/Cross-Appellee,

v. 

THE NEW MEXICO DEPARTMENT 

OF THE ENVIRONMENT (Secretary Ron Curry), 

Appellee/Cross-Appellee, 

v. 

LUZ VARGAS and HEATHER McMURRAY, 

Appellees-Respondents/Cross-Appellants.

APPEAL FROM THE NEW MEXICO DEPARTMENT OF ENVIRONMENT

Rudy S. Apodaca, Presiding Judge

Sutin, Thayer & Browne, PC

C. Shannon Bacon

Christopher A. Holland

Albuquerque, NM

Kemp Smith, LLP
2

Hunter Burkhalter

Mark Osborn

Austin, TX

for Appellant/Cross-Appellee

Ron Curry, Secretary of the New Mexico Environment Department

Ripley B. Harwood, P.C. 

Ripley B. Harwood, Special Assistant Attorney General 

Albuquerque, NM

Tracy M. Hughes

Special Assistant Attorney General

NM Environment Department

Santa Fe, NM

for Appellee/Cross-Appellee

Sunland Park Grassroots Environmental Group

Luz Vargas

Sunland Park, NM

Sunland Park Grassroots Environmental Group

Heather McMurray 

El Paso, TX

Sunland Park Grassroots Environmental Group

Robert Ardovino 

Sunland Park, NM

Pro Se Appellees/Cross-Appellants

OPINION

BUSTAMANTE, Judge.

{1} Camino Real Environmental Center (Camino Real) appeals from the administrative

decision and order of the New Mexico Secretary of the Environment (Secretary) renewing

its permit to operate a landfill, but limiting the renewal to a one- year period. The Solid

Waste Act provides that “except as otherwise provided by law,” private landfill permits

“shall remain in effect ten years, or for the active life of the facility, whichever is less.”

NMSA 1978, § 74-9-24(G)(2) (1993). On appeal, we consider whether the New Mexico

Supreme Court’s decision in Colonias Development Council v. Rhino Environmental

Services Inc. (Rhino), 2005-NMSC-024, 138 N.M. 133, 117 P.3d 939, provides an exception
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“as otherwise provided by law” allowing the Secretary to limit a landfill permit to a one-year

period. We conclude that Rhino does not provide such an exception and that the Solid Waste

Act does not otherwise authorize the Secretary to limit the duration of a permit.

{2} Cross-Appellants Luz Vargas and Heather McMurray (Vargas and McMurray),

acting pro se, challenge the approval of Camino Real’s permit for any duration. They argue

that in granting the permit, the New Mexico Environment Department (NMED) failed to

consider evidence showing a history of considerable environmental contamination in

Sunland Park. However, Vargas and McMurray’s cross appeal does not directly challenge

any of NMED’s findings supporting approval of Camino Real’s permit and otherwise fails

to demonstrate an absence of substantial evidence, an abuse of discretion, or an outcome that

is contrary to law.

{3} Accordingly, we affirm the Secretary’s decision to grant a permit, but we set aside

the Secretary’s final order because it was improperly limited to one year, and we remand to

the Secretary for reconsideration of an order consistent with this opinion.

BACKGROUND

{4} These appeals concern a privately owned existing landfill in Sunland Park, New

Mexico situated adjacent to the U.S.-Mexico border to the south and near the Texas state line

to the east. Joab, Inc. (Joab) was the previous operator of the landfill at this site and began

operation there in approximately 1987. Joab’s last landfill permit application at this site was

considered in 1992 and was the subject of an appeal before this Court resulting in approval

of a landfill permit for a term of five years. See Joab, Inc. v. Espinosa, 116 N.M. 554, 865

P.2d 1198 (Ct. App. 1993). The landfill was sold to Camino Real before the expiration of

that five-year period.

{5} Camino Real operated under Joab’s 1992 permit until March 1997 when it was issued

a modified permit extending the term an additional ten years and allowing expansion into

a new unit (unit two) of the landfill. Unit two is the current active area of the landfill and

includes twelve lined disposal cells on approximately 126 acres. Unit one, the initial fiftyacre area of the landfill, was closed in approximately 1992 and subsequently capped, revegetated, and monitored as required by NMED’s regulations. Camino Real’s 1997 permit

was reissued in March 2001 to address the installation of certain gas collection and control

systems required by law. Camino Real continued operating under that permit through March

2006. Camino Real filed this application seeking a ten-year renewal and permission to use

new lined cells in unit three of the landfill. Camino Real anticipates that unit three will

accommodate waste receipts through at least the ten-year extension period it sought. 

{6} Leading up to its consideration of Camino Real’s permit, NMED took several

measures to assess community concerns about the application. For example, NMED held

public meetings in June and October 2007 to explain the permitting process, receive public

comment, and respond to questions. In addition, NMED met with local officials, held
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meetings specifically to listen to concerns over environmental issues, made records

regarding Camino Real’s application available for inspection within the community, and

hired a consultant to research and assemble environmental studies in the Sunland Park area

for review by the public. 

{7} An NMED appointed hearing officer (Hearing Officer) conducted a public hearing

on the application in Sunland Park from December 5 through December 20, 2007. During

the hearing Camino Real, NMED, the City of Sunland Park, and several pro se community

members—including Vargas and McMurray—entered appearances as parties. Camino Real

and NMED submitted evidence and called witnesses in support of the application, and the

remaining parties presented evidence and witnesses in opposition. In addition to the pro se

community members, sixty-one other people gave public testimony opposing the application

and fourteen submitted written comments in opposition to the landfill.

{8} After the hearing, the Hearing Officer issued a report containing 406 proposed

findings of fact, sixty-nine conclusions of law, and a recommended final order. The Hearing

Officer’s proposed final order recommended that Camino Real’s permit be approved for a

ten-year period subject to compliance with thirteen conditions. This order was submitted to

the Secretary for final approval and was ultimately adopted by the Secretary with some

exceptions.

{9} The Secretary’s final order reflected a concern that the Hearing Officer’s report “did

not include any portion of the public comment offered by [the sixty-one] people at the

hearing” who were not called as witnesses by parties, but nonetheless provided testimony.

The Secretary independently reviewed the transcripts containing the testimony of these

individuals and disagreed with the Hearing Officer that the bases for their complaints were

outside the scope of consideration. The Secretary concluded that, pursuant to Rhino, their

comments were required to be considered and justified modification of several of the

Hearing Officer’s findings and conclusions, including limiting Camino Real’s renewal to

only one year. The Secretary stated that

[i]n that year, [Camino Real] staff in this agency and the citizens will be able

to continue to meet, and will have much more information about whether

Asarco, which has negatively affected the health and welfare of the Sunland

Park community, will be permitted by the State of Texas to reopen; whether

new maquiladora development and other development anticipated in the area

will proceed, and whether it has a beneficial effect in the community. 

Camino Real requested that the Secretary reconsider the one-year limit, but the request was

denied. The Secretary’s decision to reduce the term of the permit from ten years to one year

is the basis of Camino Real’s appeal.

DISCUSSION
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1. The Secretary Lacked Authority to Limit Camino Real’s Permit to One Year

{10} This Court has jurisdiction over the appeal of an administrative action taken pursuant

to the Solid Waste Act under NMSA 1978, Section 74-9-30(A) (1990). “In exercising our

jurisdiction to review administrative agency decisions made under the Solid Waste Act, this

Court considers whether, as a matter of law, the decision is arbitrary, capricious, an abuse

of discretion, not supported by substantial evidence, or otherwise contrary to law.” Joab,

Inc., 116 N.M. at 557, 865 P.2d at 1201.

{11} Camino Real argues that the Secretary’s action limiting the landfill permit to one year

was inconsistent with the Solid Waste Act and solid waste regulations in place at the time

of its permit application. The Solid Waste Act states that “[e]xcept as otherwise provided

by law . . . each permit issued for a privately owned new or repermitted existing landfill,

transfer station, recycling facility or composting facility shall remain in effect for ten years,

or for the active life of the facility, whichever is less.” § 74-9-24(G)(2). The solid waste

administrative regulations in place at the time of Camino Real’s application set out a

virtually identical provision. See 20.9.1.200(L)(4) NMAC (11/27/01). Because the

regulations cannot be interpreted more broadly than the Solid Waste Act, our analysis

focuses on whether the Secretary acted in accordance with the statute. See Family Dental

Ctr. of N.M., P.C. v. N.M. Bd. of Dentistry, 97 N.M. 464, 467, 641 P.2d 495, 498 (1982)

(stating that “[i]f an agency, to whom the Legislature has delegated authority to promulgate

rules and regulations within the guidelines set by the Legislature, promulgates rules which

are broader than the guidelines set by the Legislature, the agency rules must yield to the

guidelines”). Camino Real asserts that since the expected active life of its facility is

approximately fifty years, the Secretary was required to affirm the Hearing Officer’s

recommendation for a ten-year approval.

{12} Camino Real’s challenge presents a question of statutory interpretation. Although

the validity of NMED’s action and its interpretation of the facts are given a degree of

deference, Joab, Inc., 116 N.M. at 557, 865 P.2d at 1201, interpretation of a statute is a

question of law which we review de novo. Morgan Keegan Mortgage Co. v. Candelaria,

1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (filed 1997). “In interpreting statutes,

we seek to give effect to the Legislature’s intent, and in determining intent we look to the

language used and consider the statute’s history and background.” Key v. Chrysler Motors

Corp., 1996-NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996). In reviewing

Camino Real’s challenge, we observe the following general principles: (1) the plain

language of the statute is the primary indicator of legislative intent; (2) we will not read into

a statute language which is not there, particularly if it makes sense as written; (3) we will

give persuasive weight to long-standing administrative constructions of statutes by the

agencies charged with administering them; and (4) when several sections of a statute are

involved, they must be read together so that all parts are given effect. Kirkpatrick v. Santa

Fe County BCC, 2009-NMCA-110, ¶ 11, 147 N.M. 127, 217 P.3d 613.
1 One of the facts alleged in Rhino as evidence of proliferation of industrial and other

noxious land uses in the area was the existence of Camino Real’s landfill in Sunland Park.

Id.

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{13} The Secretary acknowledges that the Solid Waste Act states that permits shall remain

in effect for ten years, but argues that he nonetheless acted within his discretion by limiting

the duration of the permit to one year. Specifically, the Secretary argues that modification

of Camino Real’s permit was justified because the New Mexico Supreme Court’s decision

in Rhino created an “[e]xcept[ion] as otherwise provided by law” in Section 74-9-24(G), and

that “[t]he [S]ecretary may require appropriate modifications of the permit, including

modifications necessary to make the permit terms and conditions consistent with . . . judicial

decisions.” § 74-9-24(G)(2). The Secretary asserts that this language confers broad

discretion upon NMED and that he had a duty to liberally interpret the Solid Waste Act in

order to uphold its intent and requirements. See Atlixco Coal. v. Maggiore, 1998-NMCA134, ¶ 15, 125 N.M. 786, 965 P.2d 370 (stating that the Solid Waste Act is to be liberally

construed in order to carry out its purpose); see also Rhino, 2005-NMSC-024, ¶ 35 (stating

“that a certain amount of discretion is necessary to administer and enforce regulations so as

to implement legislative enactments and meet the needs of individual justice”).

 

{14} The Rhino case dealt with an application by Rhino Environmental Services, Inc. for

a permit to operate a landfill in Chaparral, New Mexico approximately forty to fifty miles

northeast of Sunland Park. Id. ¶¶ 2, 9 n.2. Rhino’s permit was ultimately set aside on appeal

based on NMED’s failure to consider the community of Chaparral’s non-technical quality

of life concerns and issues relating to the cumulative effects that may result from

proliferation of industrial land uses.1

 Id. ¶ 42. In summary, the Court held that non-technical

public input is vital to the success of the Solid Waste Act, that the Secretary should consider

such issues as they relate to public health and welfare concerns not addressed by specific

technical regulations, and that ordinary concerns about a community’s quality of life could

influence the decision of whether to issue a landfill permit. Id. ¶¶ 23-24. The Court further

held that the proliferation of industrial land uses must be evaluated under the Solid Waste

Act and may affect the outcome of a permit application based on whether the “cumulative

effects of pollution, exacerbated by the incidences of poverty, [create] a public nuisance or

hazard to public health, welfare, or the environment.” Id. ¶¶ 31-32.

 

{15} However, contrary to the Secretary’s assertion, Rhino does not provide a legal

exception to the Legislature’s statement that, if approved, solid waste facility permits “shall

remain in effect for ten years, or for the active life of the facility.” § 74-9-24(G)(2). The

Court in Rhino did not address the issue of permit duration, and there is nothing to suggest

that the Court intended to create a legal exception to the permit duration provision. New

Mexico Courts have generally interpreted provisions “except as . . . provided by law” to refer

only to exceptions found in constitutional or other legislative provisions. See State ex rel.

N.M. Judicial Standards Comm’n v. Espinosa, 2003-NMSC-017, ¶ 28, 134 N.M. 59, 73 P.3d

197 (indicating that when a constitutional provision establishes a power to be exercised
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“‘unless otherwise provided by law,’ that law must come from the Constitution or

legislation”). While, pursuant to Rhino, community input and proliferation issues are

relevant considerations impacting the ultimate approval of a permit or the terms and

conditions placed on a permit, Rhino provides no legal exception to the ten-year permit

duration set forth by the Solid Waste Act.

{16} Absent an exception “as otherwise provided by law,” the Secretary lacks authority

to deviate from the duration provision of Section 74-9-24(G)(2). Applying the plain

meaning rule, we find the language: “shall remain in effect for ten years, or for the active

life of the facility, whichever is less,” Section 74-9-24(G)(2), to be clear and unambiguous.

See Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 (stating that in

applying the plain meaning rule, we give effect to the statute’s language and refrain from

further interpretation when the language is clear and unambiguous). The Legislature’s use

of the word “shall” imposes a requirement that, if approved, landfill permits like Camino

Real’s will be issued for ten years or the life of the landfill. See Tomlinson v. State, 98 N.M.

213, 215, 647 P.2d 415, 417 (1982).

{17} Furthermore, we interpret the Secretary’s authority generally to impose modifications

as limited by the Legislature’s inclusion of the express duration provision. Section 74-9-

24(G)(2) states both that permits “shall remain in effect for ten years,” and that “[t]he

[S]ecretary may require appropriate modifications of the permit.” In determining the

meaning of this language we apply the tenet of statutory construction that where provisions

appear to conflict, the specific requirements govern over the general. See Compton v. Lytle,

2003-NMSC-031, ¶ 16, 134 N.M. 586, 81 P.3d 39. We must also read all provisions under

Section 74-9-24(G)(2) together in order to ascertain the Legislature’s intent. N.M. Bd. of

Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 13, 142 N.M. 248, 164 P.3d 947; see also

Medina v. Holguin, 2008-NMCA-161, ¶ 14, 145 N.M. 303, 197 P.3d 1085 (“Based on the

statutory canon of construction, noscitur a sociis, a court must look to the neighboring words

in a statute to construe contextual meaning.”). Applying these rules, the Legislature’s

express proscription of a specific duration requirement prevails over its authorization for the

Secretary to require modifications. This interpretation is particularly apropos in order to

give meaning to the Legislature’s inclusion of a specific permit duration requirement. See

In re Adjustments to Franchise Fees, 2000-NMSC-035, ¶ 14, 129 N.M. 787, 14 P.3d 525

(stating that statutes must be interpreted so that no part is rendered surplusage or

superfluous).

{18} The statute’s history and background also demonstrate legislative intent to limit the

Secretary’s discretion with respect to permit duration. In Joab, Inc., then Secretary Espinosa

limited Joab’s landfill permit to five years based on regulations stating that “[t]he Director

shall not issue any permit for a period longer than [ten] years, which may be renewed.” 116

N.M. at 560, 865 P.2d at 1204 (emphasis added) (internal quotation marks and citation

omitted). Joab argued that, based on the evidence, its landfill permit should have been

granted for the full ten-year term. Id. at 557, 865 P.2d at 1201. Examining the then existing

provision, we concluded that the secretary acted within her discretion by limiting the permit
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to less than ten years. Id. at 561-62, 865 P.2d at 1205-06. However, unlike the provision

at issue in Joab, Inc., the current Solid Waste Act does not use the ten-year duration as an

outer limit, but instead as the required duration absent some shorter life span of a landfill

facility.

{19} The Legislature’s decision to adopt statutory language differing from the thenexisting regulations indicates a deliberate choice to create a non-discretionary minimum

permit duration. The Legislature is presumed to have known the law in place at the time it

adopted the Solid Waste Act. State v. Adam M., 1998-NMCA-014, ¶ 21, 124 N.M. 505, 953

P.2d 40 (filed 1997). In adopting the Solid Waste Act, the Legislature could have simply

incorporated the existing regulatory language governing permit duration. By not doing so

the Legislature evinced an intent to require a specific duration based on the life of the landfill

or ten years, whichever is less. See § 74-9-24(G)(2). We also note that from a policy

perspective, it appears reasonable for the Legislature to mandate a required permit duration

where the permit approval process requires significant investments of time and resources.

 

{20} Although the Secretary lacked authority to limit the overall duration of Camino

Real’s permit to one year, the Solid Waste Act allows for intermittent reviews which could

account for the Secretary’s concerns about changing conditions impacting Sunland Park.

Section 74-9-24(G)(2) incorporates a provision which requires a review of landfill permits

“at least every five years,” with the opportunity for additional reviews where there is “good

cause.” Such reviews “shall address the operation, compliance history, financial assurance

and technical requirements for the landfill,” and the Secretary may require appropriate

permit modifications at that time. Id. These reviews require public notice, and if there is

“significant public interest,” a hearing. Id. Thus, the Act allows for public oversight in

order to protect a community’s health, safety, and welfare over shorter intervals, even where

permits are issued for more substantial periods of time. We believe that the Legislature’s

authorization for the Secretary to perform such reviews accounts for the Secretary’s concern

that the circumstances affecting Sunland Park may change during the lifetime of a landfill

permit which could justify action by NMED.

2. The Cross Appeal Fails

{21} As previously observed, in reviewing administrative determinations made under the

Solid Waste Act, this Court considers only whether, “as a matter of law, the decision is

arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or

otherwise contrary to law.” Joab, Inc., 116 N.M. at 557, 865 P.2d at 1201; see § 74-9-30(B).

As pro se litigants, Vargas and McMurray are required to comply “with the rules and orders

of the court and will not be treated differently than litigants with counsel.” Woodhull v.

Meinel, 2009-NMCA-015, ¶ 30, 145 N.M. 533, 202 P.3d 126 (filed 2008). “Although pro

se pleadings are viewed with tolerance, a pro se litigant . . . is held to the same standard of

conduct and compliance with court rules, procedures, and orders as are members of the bar.”

Id. (internal quotation marks and citation omitted).
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{22} Vargas and McMurray generally agree that evidence of existing pollution in Sunland

Park was entered into the record but disregarded by the Hearing Officer. The argument may

be characterized as a challenge based on abuse of discretion or substantial evidence. We

first note that contrary to Rule 12-213(A)(4) NMRA, Vargas and McMurray have not

challenged any of the findings made by the Secretary. Under this Rule, where parties fail

to “set forth a specific attack on any finding, . . . such finding[s are] deemed conclusive.”

Id. “A contention that a verdict, judgment or finding of fact is not supported by substantial

evidence shall be deemed waived unless the argument identifies with particularity the fact

or facts that are not supported by substantial evidence.” Id. Thus, Vargas and McMurray

have waived any arguments that the Secretary’s findings are not supported by substantial

evidence. See Joab, Inc., 116 N.M. at 560, 865 P.2d 1204.

{23} Furthermore, Vargas and McMurray do not demonstrate that any of the Secretary’s

actions constitute an abuse of discretion. “An abuse of discretion occurs when a ruling is

clearly contrary to the logical conclusions demanded by the facts and circumstances of the

case.” Sims, 1996-NMSC-078, ¶ 65. When reasons both supporting and detracting from a

decision exist, there is no abuse of discretion. Talley v. Talley, 115 N.M. 89, 92, 847 P.2d

323, 326 (Ct. App. 1993). Here, Vargas and McMurray assert that five documents showing

evidence of pollution in Sunland Park were disregarded. However, merely identifying the

existence of evidence which may have tended to support a different outcome does not

demonstrate an abuse of discretion. Given the unchallenged findings of fact, we cannot

conclude that the Secretary’s order was contrary to the facts and circumstances of this case.

{24} To the extent that Vargas and McMurray argue that, by disregarding evidence of

existing pollution, the permit approval is contrary to law based on the issue of proliferation,

their argument again falls short. At the conclusion of the public hearing, the Hearing Officer

requested special briefing from the parties to address whether the issue of proliferation, as

discussed in Rhino, applied to Camino Real’s permit application. The Hearing Officer’s

ultimate conclusion was that the issue of proliferation need not be considered where, as here,

a permit applicant was merely requesting renewal of an existing permit as opposed to

requesting a new or additional facility. The Secretary apparently agreed by adopting the

Hearing Officer’s conclusion on this issue. Vargas and McMurray do not challenge any

findings supporting this conclusion and we make no decision as to its correctness.

 

{25} However, even if the Hearing Officer erred by concluding that the question of

proliferation need not be considered here, the error was harmless. The record reflects that,

despite coming to this conclusion, the Hearing Officer nonetheless considered the question

of proliferation and found that the evidence presented was insufficient to justify denial.

Specifically, he stated that “[e]ven if the proliferation analysis had been relevant . . . the

Opponents did not present the evidence necessary to perform a meaningful proliferation

analysis in the hearing.” Again the Secretary agreed. Vargas and McMurray have failed to

challenge any findings supporting this conclusion and present no basis to set aside Camino

Real’s permit on this issue. 
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CONCLUSION

{26} For the foregoing reasons, we conclude that the Secretary did not have the authority

to limit Camino Real’s permit to one year where the New Mexico Supreme Court’s decision

in Rhino did not create a legal exception to the express permit duration set out by the Solid

Waste Act. The Rhino case and its discussion of non-technical public testimony and

proliferation impact only the ultimate decision to either approve Camino Real’s landfill

permit for ten years, approve it conditionally for ten years, or to deny it. Accordingly, we

affirm the Secretary’s decision to grant a permit, but set aside the Secretary’s final order and

remand for the Secretary to consider an order consistent with this opinion.

{27} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

CYNTHIA A. FRY, Chief Judge

____________________________________

CELIA FOY CASTILLO, Judge

Topic Index for Camino Real Environmental Center, Inc. v. NM Dept of Environment,

Docket No. 28,857

AL ADMINISTRATIVE LAW AND PROCEDURE

AL-AA Administrative Appeal

AL-AC Arbitrary and Capricious Actions

AL-LI Legislative Intent

AE APPEAL AND ERROR

AE-PR Pro Se Representation on Appeal

GV GOVERNMENT

GV-WS Water and Waste Systems

MS MISCELLANEOUS STATUTES

MS-SO Solid Waste Act

ST STATUTES

ST-IP Interpretation
11

ST-LI Legislative Intent