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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMCA-024

Filing Date: December 27, 2017

Docket No. A-1-CA-35253

COMMUNITIES FOR CLEAN WATER,

Appellant,

v.

NEW MEXICO WATER QUALITY

CONTROL COMMISSION,

Appellee,

and

NEW MEXICO ENVIRONMENT 

DEPARTMENT and LOS ALAMOS

NATIONAL SECURITY, LLC.,

Intervenors.

ADMINISTRATIVE APPEAL FROM THE NEW MEXICO WATER QUALITY

CONTROL COMMISSION

Jeffrey N. Holappa, Hearing Officer

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
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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

OPINION

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
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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-
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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
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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 must

then issue a report, which is available for public inspection, and presented to the secretary,

who then issues a decision on the matter. See 20.6.2.3110(K), (L) NMAC.

{12} Once those proceedings have concluded, a person who participated in the permitting

action and is adversely affected by the grant, denial, termination, or modification of a permit

may file a petition for review before the WQCC. See § 74-6-5(N), (O). Upon receipt of a

timely written petition that details the issues to be raised and relief sought, the WQCC must

hold a review proceeding. See § 74-6-5(O), (P). The WQCC is required to give public

“notice of the date, time and place for the review” proceeding. Section 74-6-5(P). If, prior

to the review proceeding, “a party shows to the satisfaction of the [WQCC] that there was

no reasonable opportunity to submit comment or evidence on an issue being challenged,”

the WQCC is required to order that NMED take additional comment or evidence. Section

74-5-6(R). As part of review proceedings, the WQCC reviews the record compiled before

NMED, including the transcript of any public hearing, and must allow “any party to submit

arguments.” Section 74-6-5(Q). The WQCC then enters findings of fact and conclusions of

law sustaining, modifying, or reversing NMED’s actions, “[b]ased on [its] review of the

evidence, the arguments of the parties and recommendations of the hearing officer[.]”

Section 74-6-5(Q).
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Opportunity for a Public Hearing

{13} The parties agree that the statute precludes NMED from ruling on a permit

application until interested parties are given an “opportunity for a public hearing[.]” Section

74-6-5(G). They disagree, however, on the meaning of the phrase “opportunity for a public

hearing.” Specifically, the parties disagree as to whether the opportunity for a public hearing

mandates a hearing or gives the secretary discretion to deny a request for a public hearing.

{14} When construing a statute, “a reviewing court’s central concern is to determine and

give effect to the intent of the [L]egislature.” Public Serv. Co. of N.M. v. N.M. Pub. Util.

Comm’n, 1999-NMSC-040, ¶ 18, 128 N.M. 309, 992 P.2d 860 (internal quotation marks and

citation omitted). Courts traditionally follow three canons of construction. First, “[t]he plain

language of a statute is the primary indicator of legislative intent.” Id. (internal quotation

marks and citation omitted); DeMichele v. N.M. Taxation & Revenue Dep’t, 2015-NMCA095, ¶ 14, 356 P.3d 523 (“The plain meaning rule presumes that the words in a statutory

provision have been used according to their plain, natural, and usual signification and

import, and the courts are not at liberty to disregard the plain meaning of words in order to

search for some other conjectured intent.” (omission, internal quotation marks, and citation

omitted)). Second, words carry their ordinary meaning unless it is clear the Legislature

meant otherwise. See id. Third, we do not read into a statute language that is not there,

“especially when it makes sense as it is written.” Id. (internal quotation marks and citation

omitted). We must construe the entire statute so that all provisions are considered in relation

to one another. See Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 35, 333

P.3d 947; N.M. Mining Ass’n, 2007-NMCA-010, ¶ 12. Furthermore, regulations in the New

Mexico Administrative Code are interpreted using the same rules applied in statutory

interpretation. Carrillo v. My Way Holdings, LLC, 2017-NMCA-024, ¶ 22, 389 P.3d 1087.

Finally, while rules, regulations, and standards enacted by an agency are presumed valid if

they are reasonably consistent with the authorizing statutes, id., “the administrative agency’s

discretion may not justify altering, modifying, or extending the reach of a law created by the

Legislature.” State ex rel. Stapleton v. Skandera, 2015-NMCA-044, ¶ 8, 346 P.3d 1191

(alterations, internal quotation marks, and citation omitted).

The Secretary Has Discretion to Hold a Hearing Under Section 74-6-5

{15} The provisions of the Act evidence the Legislature’s intent to include the public in

the permit application, issuance, and implementation process. The Act is replete with

opportunities for public participation, evidencing the Legislature’s intent that the public

actively participate in protecting New Mexico’s ground and surface water from pollution.

See § 74-6-5 (calling for public notice and public participation throughout the permitting

process); Section 74-6-6(A) (requiring a public hearing prior to the adoption, amendment,

or repeal of regulations and water quality standards); Section 74-6-4(H) (requiring a public

hearing prior to granting variance); Section 74-6-15(A) (making records, reports, and

information obtained by the WQCC or NMED pursuant to the Act “generally available to

the public”); Section 74-6-10(G) (allowing for a public hearing in compliance order context).
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It is with this legislative intent to provide for robust public participation throughout the

permitting process in mind, that we interpret the language of Section 74-6-5(G). See State

ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352 (stating

that statutes should be interpreted to achieve the Legislature’s purpose).

{16} The language of the statute provides no clues as to the Legislature’s intended

meaning of the phrase, “opportunity for a public hearing.” Rather than consider the meaning

of the term “opportunity for a public hearing,” in isolation, however, we consider the statute

in its entirety. See State ex rel. People’s Bank & Tr. Co. of Las Vegas v. York, 1918-NMSC118, ¶ 6, 24 N.M. 643, 175 P. 769 (“In the construction of a statute, in order to determine the

true intention of the Legislature, the particular clauses and phrases should not be studied as

detached and isolated expressions, but the whole and every part of the statute must be

considered in fixing the meaning of any of its parts.” (internal quotation marks and citation

omitted)).

{17} CCW argues that the WQCC and NMED incorrectly interpreted the regulation in

such a way that the regulation conflicts with the statute. Specifically, CCW argues that,

under the statute, the secretary has no discretion to refuse a request for public hearing on a

discharge permit application and NMED’s denial of its hearing request was not in

accordance with the law. Alternatively, CCW argues that if NMED had discretion to refuse

a public hearing request, that discretion is limited to circumstances where there was no

substantial public interest, which CCW claims was not the case in this instance. In response,

LANS and the WQCC argue that the discretion given to the secretary in 20.6.2.3108(K)

NMAC does not conflict with Section 74-6-5(G) because requiring an “opportunity for a

public hearing” is not a guarantee that a hearing will take place and that the regulation’s

substantial public interest standard was properly applied in denying CCW’s request.

{18} While CCW contends that a public hearing is mandatory under the plain meaning of

the statute, LANS argues that “opportunity” connotes possibility, rather than certainty.

Further, the WQCC points out that while other sections of the Act use words like “shall” to

evidence the Legislature’s clear intent that a public hearing is mandatory, Section 74-6-5(G)

contains no such compulsory language. Instead, the WQCC contends Section 74-6-5(G)

places the decision of whether to hold a hearing within NMED’s discretion. Measuring

Section 74-6-5(G)’s language against language used elsewhere in the Act, we agree with the

WQCC that the Legislature’s plain language indicates an intent to grant some degree of

discretion as to whether to hold a public hearing. Indeed, elsewhere in the Act, the

Legislature makes absolutely clear that a hearing is required, specifying that the WQCC

“shall conduct a public hearing” within a certain time frame after receiving a request. See

§ 74-6-10(G); see also § 74-6-5(P) (stating the WQCC “shall consider the petition within

ninety days after receipt of the petition”). By comparison, the Legislature’s election to

provide an “opportunity” for a hearing, rather than a mandate, suggests that a hearing is not

always required.

{19} LANS points to similar provisions within the Federal Clean Water Act and
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accompanying Environmental Protection Agency (EPA) regulations and urges us to follow

federal law when interpreting our statute and the accompanying regulation. Just as the Act

requires that interested persons be given an “opportunity for a public hearing,” Section 74-6-

5(G), the Federal Clean Water Act provides that “the Administrator may, after opportunity

for public hearing issue a permit for the discharge of any pollutant[.]” 33 U.S.C. §1342(a)(1)

(2012). The companion federal regulation provides that the “Director shall hold a public

hearing whenever he or she finds, on the basis of requests, a significant degree of public

interest in a draft permit[.]” 40 C.F.R. §124.12(a)(1) (2012); see also 40 C.F.R. 124.2(a)

(2012) (defining “Director” as the regional administrator of an EPA regional office, chief

administrative officer of a state agency, or tribal director).

{20} The United States Supreme Court interpreted the Federal Clean Water Act’s

requirement for an “opportunity for public hearing” and its accompanying EPA regulations

in Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980). In Costle, the Supreme Court

considered whether the Federal Clean Water Act required the EPA to conduct a hearing

before modifying a permit to extend its expiration date when notice of the proposed

modification was given, but no one submitted comments or requested a hearing. Costle, 445

U.S. at 213. The EPA issued a final determination extending the expiration date of the permit

without holding a hearing, Costle, 445 U.S. at 205-209, arguing that it was “entitled to

condition the availability of a public hearing . . . on the filing of a proper request.” Id. at 213.

The Court explained that the relevant regulations “were designed to implement the statutory

command that permits be issued after opportunity for public hearing[,]” id. at 214 (internal

quotation marks and citation omitted), and noted that it had previously held that “a similar

statutory requirement that an ‘opportunity’ for a hearing be provided may be keyed to a

request for a hearing.” Id. (citing Nat’l Indep. Coal Operators’ Ass’n v. Kleppe, 423 U.S.

388, 398-99 (1976). Balancing the fact that a rule requiring hearings on all agency permitting

actions, “would raise serious questions about the EPA’s ability to administer the [permit]

program[,]” Costle, 445 U.S. at 215, with the clear legislative history of “congressional

desire that the public have input in decisions concerning the elimination of water

pollution[,]” id., the Court held “that the regulations the EPA has promulgated to implement

this congressional policy are fully consistent with the legislative purpose, and are valid.”

Costle, 445 U.S. at 216.

{21} The Court also expressed disagreement with the lower court’s interpretation of the

statute that, according to the Court, rendered the EPA regulation “essentially meaningless”

by requiring the EPA to prove the material facts of the action, notwithstanding that they were

not subject to dispute. Costle, 445 U.S. at 214. Instead, the Court pointed with approval, to

past decisions in which similar agency rules “required an applicant who seeks a hearing to

meet a threshold burden of tendering evidence suggesting the need for a hearing.” Id. (citing

Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973)). In Weinberger,

the United States Supreme Court considered similar language found in the Federal Food,

Drug, and Cosmetic Act (FDCA) related to the withdrawal of a new drug application (NDA).

The FDCA “requires [the] FDA to give ‘due notice and opportunity for hearing to the

applicant’ before it can withdraw its approval of an NDA.” Weinberger, 412 U.S. at 620
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(emphasis added) (internal quotation marks and citation omitted). In furtherance of its

obligation to provide notice and an opportunity for hearing on NDAs, the FDA promulgated

regulations related to the instances in which an opportunity for a hearing would be provided

under the FDCA. Weinberger, 412 U.S. at 620-21. To be entitled to a hearing, according to

the FDA regulations, applicants must meet a threshold showing that includes evidence that,

on its face, meets the statutory standards, as particularized by the regulations. Weinberger,

412 U.S. at 620. Noting that applicants have “full and precise notice of the evidence they

must present to sustain their NDA’s,” the Court held that the regulations were

“unexceptionable on any statutory or constitutional ground.” Weinberger, 412 U.S. at 622.

The Court, quoting from Federal Power Commission v. Texaco, 377 U.S. 33, 39 (1964),

noted, “[T]he statutory requirement for a hearing . . . does not preclude the Commission from

particularizing statutory standards through the rulemaking process and barring at the

threshold those who neither measure up to them nor show reasons why in the public interest

the rule should be waived.” Weinberger, 412 U.S. at 620.

{22} After examining the plain language of the statute in relationship to the rest of the Act

and considering the United States Supreme Court’s interpretation of similar language, we

are persuaded that the Legislature intended to confer limited discretion on the secretary to

determine whether a hearing should be held on a permit application under the Act. We now

consider the scope of that discretion. 

Scope of Secretary’s Discretion

{23} The regulation contains two threshold requirements that must be satisfied before a

party is entitled to a public hearing on a permit application. First, a party must submit a

request in writing, setting forth the reasons a hearing should be held. 20.6.2.3108(K) NMAC.

We note that the parties have voiced no quarrel with the regulatory requirement that a

request for hearing must be written and must set out the reason why the hearing should be

held, and we hold that the plain language of the statute does not preclude the secretary from

requiring that a party submit such a written request. See Costle, 445 U.S. at 214

(acknowledging that a party’s opportunity for public hearing “may be keyed to a request for

a hearing”). 

{24} The regulation further requires that, before a party is entitled to a public hearing, the

secretary must determine there is a substantial public interest in the matters that are the

subject of the permit application. 20.6.2.3108(K) NMAC. The WQCC issued conclusions

of law as part of its final order, concluding that the secretary had properly considered the

public interest in denying CCW’s request for a hearing on the permit. We now consider

whether those conclusions were supported by substantial evidence.

{25} The regulation fails to define “substantial public interest” and fails to set out any

particularized standards the secretary should consider in deciding whether a party requesting

a hearing has satisfied this requirement. See Weinberger, 412 U.S. at 620 (citing Texaco, 377

U.S. at 39). Both CCW and NMED argue that a determination of substantial public interest
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is a substantive, or qualitative, inquiry. CCW argues that the WQCC abused its discretion

in upholding the secretary’s denial of its hearing request because the secretary’s decision that

there was no substantial public interest in the permit is not supported by substantial evidence

in the record. Pointing to Republican Party of New Mexico v. New Mexico Taxation &

Revenue Department, 2012-NMSC-026, ¶ 10, 283 P.3d 853 (stating “substantial public

interest,” as an issue of “public importance”), CCW contends that something is of substantial

public interest when the issues raised are substantive, are of considerable size, weight, and

importance, address the “essentials of the matter at issue,” and are real and tangible. Both

LANS and the WQCC argue that CCW failed to demonstrate a substantial public interest,

and the secretary therefore acted within his discretion to deny CCW’s request for public

hearing. NMED suggests that the reference to “substantial” encompasses the “quality of the

concerns that are raised” while “public” refers to anyone “not part of the government.” We

need not determine the meaning of substantial public interest or define what factors make

up a substantial public interest determination under the regulation because we hold the

factors cited by the WQCC to uphold the secretary’s denial of a hearing have no bearing on

any such analysis and that the WQCC’s decision to affirm the secretary’s denial of CCW’s

hearing request was not supported by substantial evidence.

WQCC’s Decision

{26} In denying CCW’s request for a hearing on the permit, the WQCC took note of three

factors. First, the WQCC noted that the issues for public hearing were raised by a “sole

participant whose concerns had been repeatedly addressed by the Bureau, DOE and LANS

throughout the permitting process.” Second, the WQCC commented that the permit “will

allow DOE to begin to remediate [a] contaminated groundwater plume within the boundaries

of LANL [, and d]elaying the remediation of contaminated groundwater could therefore be

harmful to both public health and the environment.” Finally, the WQCC pointed out that

CCW “never challenged the merits of [the permit].” Based on these three factors, WQCC

determined that, “[t]he totality of the evidence contained in the record sufficiently supports

the conclusion that the [s]ecretary properly determined any remaining concerns of that sole

participant failed to rise to the level of substantial public interest.” We address each of these

factors in turn.

{27} With regard to WQCC’s finding that CCW was a sole participant whose concerns

were addressed, our concern is two-fold. We initially question the relevance of WQCC’s

characterization of CCW’s request as a challenge by a “sole participant” in light of the

parties’ agreement that “substantial public interest” is a qualitative analysis, not a

quantitative one. However, even if “substantial public interest” were to be a quantitative

analysis, the WQCC’s characterization of CCW as a “sole participant” seems contrary to its

acknowledgment that CCW is a coalition of six organizations, including Concerned Citizens

for Nuclear Safety, Amigos Bravos, Honor our Pueblo Existence, the New Mexico Acequia

Association, the Partnership for Earth Spirituality, and Tewa Women United. As such,

WQCC’s finding of a “sole participant” is not supported by the evidence.
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{28} Further, the WQCC’s rationale that the request for hearing was made by a participant,

“whose concerns had been repeatedly addressed by the Bureau, DOE and LANS,” lends little

support to its conclusion that CCW failed to show a substantial public interest in light of the

legislative intent in favor of broad public participation in the permitting process. In its final

order, the WQCC reasoned that the Bureau’s “substantive responses” to CCW’s concerns

were effective in diminishing the level of public interest in the permit application. NMED’s

ability to provide substantive responses to CCW’s concerns stands completely separate from

a consideration of whether those concerns demonstrated a substantial public interest. Indeed,

nothing in the statute or regulations suggests that NMED may ameliorate concerns regarding

a permit through private meetings in lieu of a properly requested public hearing, particularly

if a party has demonstrated a substantial public interest.

{29} Through its three requests for public hearing, CCW raised procedural and substantive

issues involving the permit application, including the calculation and application of

discharge limits, the basis for treatment standards, soil sampling requirements, the use and

impact of radioactive materials, and the definition and implementation of “work plans.”

CCW’s requests for public hearing, rather than state general objections or concerns, present

detailed articulations of reasons that CCW was dissatisfied with specific language and

calculations in, and omissions from the permit. The issues raised in CCW’s requests were

substantial enough to warrant a meeting on April 15, 2015, between CCW, NMED, and

DOE/LANS, during which the parties discussed concerns with and alterations to the permit,

and after which, the Bureau issued a revised draft permit. There is no recording or transcript

of the meeting in the record, and it does not appear that the general public was given notice

of this meeting or an opportunity to participate.

{30} The WQCC’s conclusion that CCW’s concerns were substantial enough to justify a

private meeting among the parties and revisions to the draft permit but not enough to require

a public hearing, is unpersuasive. A review of the public hearing standards, as set forth in

the statute and regulations, quickly reveals that a private meeting is not equivalent to a public

hearing. The public hearing is a persuasive proceeding, imposing the burden of persuasion

upon the permit applicant. The public hearing provides opponents to a permit application an

opportunity to present contrary evidence and testimony, to cross-examine expert witnesses,

to present their own expert testimony, to argue their objections to the permit, and to obtain

a decision based on the evidence. Public hearings are intended to give the public an

opportunity to challenge a permit application and create a record to appeal an adverse

decision. See § 74-6-5(O)-(Q). As review proceedings are based exclusively on the record

and arguments made at the public hearing, a party having shown the existence of a

substantial public interest in the permit application is dependent upon the public hearing to

make its record in support of any necessary appeal. See id.

{31} A private meeting followed by written responses to concerns where an opponent has

no opportunity to cross-examine witnesses, present its own experts and make a record for

appeal is not a substitute for a public hearing. Such closed-door proceedings are not only

insufficient to satisfy established standards for public hearings, but are contrary to the
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legislative intent behind a statute that favors public participation in the permitting process.

In light of the foregoing, the WQCC’s reasoning—suggesting that NMED’s response

expunged the substantial public interest that may have existed prior to the response—is

unpersuasive. We conclude the WQCC lacked substantial evidence to support its conclusion

that CCW failed to show a substantial public interest because its concerns were addressed

elsewhere throughout the permitting process.

{32} The WQCC’s second factor in denying CCW’s hearing request—that the delay

caused by requiring a public hearing could be harmful to public health and the

environment—also fails to support its decision to uphold the secretary’s denial of CCW’s

hearing request for lack of substantial public interest. Indeed, to deny a public hearing

because the public health and environment issues are so grave and immediate weighs in

favor of the existence of a substantial public interest. If anything, this factor supports a

conclusion that the public interest in the permit would be heightened, rather than lessened,

mandating the hearing under the regulation.

{33} WQCC’s final factor in upholding the secretary’s denial of CCW’s request for

hearing was that CCW’s failure to challenge the permit on its merits constituted a waiver of

its right to complain that it had wrongfully been denied a public hearing. On appeal, NMED

argues that CCW waived its right to challenge the secretary’s denial of public hearing for

two reasons. First, relying on the WQCC’s conclusion, NMED contends CCW waived its

right to appeal the hearing denial because it failed to challenge the permit on its merits. We

note, however, that CCW did make substantive challenges to the permit in its requests for

public hearing. Without the opportunity to present witnesses and cross-examine the

applicant’s witnesses at a public hearing, however, any attempt to challenge the permit on

its merits is of little value, as such a challenge is limited to the review of the record created

at the public hearing. See § 74-6-5(Q). Absent a public hearing, any challenge to the merits

of the permit could not be fully developed and is useless.

{34} Second, NMED claims that CCW forfeited its opportunity to object on the grounds

that it was denied the chance to develop a record because it did not avail itself of the “safety

valve” built into Section 74-6-5(R) that allows the WQCC to send a permit back to NMED

for “additional comment or evidence.” Id. Nothing in the language of the statute, however,

sets forth such a requirement. Absent language to suggest that the Legislature intended such

a result, we decline to adopt such a prohibitive approach or to make pursuit of that review

mandatory. See Pub. Serv. Co. of N.M., 1999-NMSC-040, ¶ 18 (acknowledging that we do

not read into a statute language which is not there, especially if it makes sense as written).

{35} The WQCC’s three stated factors for sustaining NMED’s denial of CCW’s request

for a public hearing fail to include an evaluation of factors relevant to a substantial public

interest. By contrast, CCW set out detailed explanations about its relevant concerns with the

permit, all of which were in the record before the WQCC. We therefore conclude that the

WQCC acted contrary to the evidence and thereby acted arbitrarily and capriciously when

it sustained the secretary’s denial of CCW’s request for a public hearing.
13

{36} The WQCC makes one final argument, contending that its interpretation, and

therefore implementation, of the statute and regulations should be entitled to deference. We

disagree. The scientific complexities of discharge permits may lie outside this Court’s

expertise, obligating deference to the agency’s expertise in the creation of and justification

for those standards. The protection of the adversarial process by which those complexities

are presented, challenged, and implemented, however, is well within this Court’s charge. See

Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17 (declining to defer to the

commission on matters of law).

CONCLUSION

{37} We reverse the WQCC’s decision sustaining NMED’s denial of CCW’s request for

public hearing, and we remand for further proceedings consistent with this opinion.

{38} IT IS SO ORDERED.

____________________________________

JULIE J. VARGAS, Judge

I CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

HENRY M. BOHNHOFF, Judge (specially concurring).

BOHNHOFF, Judge (specially concurring).

{39} I concur in reversing the Commission’s decision. However, I reach that result on

different grounds than those articulated by the majority.

{40} Section 74-6-5(G), provides: “No 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.” The decisive question is whether, so long as

a hearing is requested by an interested person, Section 74-6-5(G) allows the secretary to

exercise any discretion in deciding whether to hold one. I conclude that it does not. As used

in the statute, “opportunity for a public hearing” means that a hearing request is a predicate

or precondition to requiring the secretary to hold a hearing, but it does not authorize the

secretary to exercise any discretion to not hold a hearing for any other reason. (While the

secretary may have discretion to choose to hold a hearing even in the absence of a

request—a question we need not resolve—it would not be accurate to state that he or she has

discretion in granting a hearing where one is requested, because he or she has no choice in

the matter.).
14

{41} The primary consideration in construing the statute is the plain meaning of

“opportunity for a public hearing.” See Cummings v. X-Ray Assocs. of N.M., P.C., 1996-

NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321 (“Our understanding of legislative intent

is based primarily on the language of the statute, and we will first consider and apply the

plain meaning of such language.”). Webster’s Third Int’l Dictionary (3d ed. 1976) defines

“opportunity” as “a combination of circumstances, time, and place suitable or favorable for

a particular activity or action” or “an advantageous circumstance or combination of

circumstances[.]” It distinguishes “opportunity” from “chance” and in that context explains

that “ ‘opportunity’ indicates a combination of circumstances facilitating a certain action or

inviting a certain decision[.]” Webster’s Third Int’l Dictionary, supra. While Intervenor

LANS suggests that “opportunity” means that there is only a chance: i.e., a possibility, of

a hearing, this construction misconstrues the word. The more reasonable construction of

“opportunity” as used in Section 74-6-5(G) is that a hearing will be held so long as an

interested party requests one. That is, the only “favorable circumstance” or predicate to

holding a hearing is the interested party’s request.

{42} As discussed by the majority, such a construction also is consistent with the overall

legislative intent or goal of encouraging public participation in permitting decisions.

{43} “Whenever possible, we must read different legislative enactments as harmonious

instead of as contradicting one another. . . . Statutes which relate to the same class of things

are considered to be in pari materia[.]” State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M.

391, 237 P.3d 693 (alterations, first omission, internal quotation marks, and citations

omitted). Carefully read, the other statutes that address public hearings in connection with

water quality regulation matters do not suggest that “opportunity for a public hearing” as that

term is used in Section 74-6-5(G) grants the secretary discretion to deny a hearing if one is

requested. First, Section 74-6-5(P) does not appear to contemplate a “hearing” at all, as

opposed to a meeting of the Commission—presumably the only or at least usual way it

acts—at which a petition to review a permitting decision will be considered. See id. (“If a

timely petition for review is made, the commission shall consider the petition[.] . . . The

commission shall notify the petitioner . . . by certified mail of the date, time and place of the

review.”). Second, Section 74-6-4(H) mandates a hearing on any application for a variance.

See id. (“[The commission] may grant an individual variance from any regulation[.] . . . The

commission shall adopt regulations specifying the procedure under which variances may be

sought, which regulations shall provide for the holding of a public hearing before any

variance may be granted[.]”). But this can be understood to mean simply that the Legislature

deems variances of sufficient importance to require a hearing even absent a request for one.

Without more, it does not support the conclusion that the different wording of Section 74-6-

5(G) connotes anything more than that the grant of a hearing on a permit application is

conditioned on a request. Third, Section 74-6-6(B) provides that “[a]ny person may petition

in writing to have the commission adopt, amend or repeal a regulation or water quality

standard. The commission shall determine whether to hold a hearing within ninety days of

submission of the petition.” This language suggests that, if the Legislature intends to give

an agency discretion in granting a hearing, it will so state expressly. Fourth, the structure and
15

syntax of Section 74-6-10(G), would appear to be dictated by the need to make clear that a

compliance order will always become final unless a request is made, as well as by the intent

to afford the subject of the order an opportunity to be heard. See id. (“Any compliance order

issued by a constituent agency pursuant to this section [regarding compliance orders] shall

become final unless, no later than thirty days after the compliance order is served, any person

named in the compliance order submits a written request to the commission for a public

hearing. The commission shall conduct a public hearing within ninety days after receipt of

a request.”). A water quality permit is different—a permit is not automatically granted or

denied if a hearing request is not made—which explains the different wording of Section 74-

6-5(G). Thus, one cannot infer, on the basis of the difference in the language of Section 74-

6-5(G) as opposed to that found in these other provisions, an intent to give the secretary

discretion to deny a request for a permit hearing.

{44} The remaining argument for construing Section 74-6-5(G) to give the secretary

discretion to grant or deny a request for a permit hearing is that such discretion is authorized

by federal law. See Costle, 445 U.S. at 202-03 (construing federal Clean Water Act);

Weinberger, 412 U.S. at 620 (construing federal Food, Drug, and Cosmetic Act); Federal

Power Comm’n, 377 U.S. at 40. That proposition assumes that our Legislature considered

these federal models when it enacted Section 74-6-5(G) in 1973; however, we have no

information to that effect.

{45} Based on the foregoing, I interpret “opportunity for a public hearing” to mean that

one will be held if an interested person requests one. For that reason I concur in reversing

the WQCC’s decision.

____________________________________

HENRY M. BOHNHOFF, Judge