1998 -NMCA- 134, Atlixco Coalition v. Maggiore

• Decision Date: 04 September 1998
• Docket Number: No. 18463,18463
• Citation: 125 N.M. 786,965 P.2d 370,1998 NMCA 134
• Parties: , 1998 -NMCA- 134 The ATLIXCO COALITION, The Center for Holistic Management, Shannon Horst, and Dwight and Joanna Hendrichsen, Appellants, v. Peter MAGGIORE, Secretary of the New Mexico Environment Department, Appellee, and Southwest Landfill, Inc., Intervenor-Appellee.
• Court: Court of Appeals of New Mexico

Page 370

965 P.2d 370

125 N.M. 786, 1998 -NMCA- 134

The ATLIXCO COALITION, The Center for Holistic Management Shannon Horst, and Dwight and Joanna Hendrichsen, Appellants, v. Peter MAGGIORE, Secretary of the New Mexico Environment Department, Appellee and Southwest Landfill, Inc., Intervenor-Appellee.

No. 18463.

Court of Appeals of New Mexico.

Sept. 4, 1998.

Douglas Meiklejohn, Douglas Wolf, New Mexico Environmental Law Center, Santa Fe, for Appellants.

Ana Marie Ortiz, Special Assistant Attorney General, Assistant General Counsel, New Mexico Environment Department, Santa Fe, for Appellee.

Gwenellen P. Janov, Williams, Janov & Cooney, P.C., Albuquerque, for Intervenor-Appellee.

OPINION

ARMIJO, Judge.

¶1 The Atlixco Coalition and four of its members (Atlixco) bring this direct appeal under NMSA 1978, Section 74-9-30 (1990), to challenge the final order issued by the Secretary of the New Mexico Environment Department (Secretary) approving a solid waste facility permit for a landfill owned by Southwest Landfill, Inc. (Southwest) that is located approximately eleven miles southwest of central Albuquerque. In this appeal, Atlixco challenges the provisions in the Secretary's final order regarding: (1) design of the liner between Cells 3 and 4 of the landfill; (2) groundwater monitoring beneath the landfill; (3) siting of an existing portion of the landfill within 50 feet of the property boundary; (4) design of the cover that will be placed over the landfill when it is closed; and (5) financial assurance that Southwest will be able to pay for an adequate cover for the landfill when it is closed. We review the Secretary's final order to determine whether it is arbitrary, capricious, an abuse of discretion, not supported by substantial evidence in the record, or otherwise not in accordance with law. Section 74-9-30.

¶2 We affirm the order with respect to the landfill's proximity to the property boundary, the alternative cover design, and the financial assurance requirements. However, because the Secretary has failed to adequately state the reasons for rejecting the proposed permit conditions regarding the additional groundwater monitoring well and the liner between Cells 3 and 4, we set aside the provisions of the final order which concern those proposed permit conditions and remand for more reasoned decisionmaking. We leave the remaining provisions of the order in place.

I. LINER DESIGN AND GROUNDWATER MONITORING

A. Background

¶3 Southwest has operated a landfill at the site since 1988. The landfill is divided into "cells," which the Department's solid waste regulations define as "confined area[s] engineered for the disposal of solid waste." 20 NMAC 9.1.I.105(K) (Nov. 30, 1995).¹ The layout of the landfill resembles that of a football field, but instead of yard lines across the field, there are five-foot berms dividing the landfill cells from one another. Also, the landfill is much larger than a football field; it will measure 120 acres in size if completed. The individual cells are filled with waste to a depth of approximately 100 feet, and they range from approximately six to twelve acres in size. Southwest estimates that it will take approximately eighteen years to fill the entire landfill site to capacity.

¶4 When a cell reaches capacity, Southwest stops depositing waste in that cell and begins depositing waste in a new cell adjacent to the old one. Southwest compares its disposal of waste in a cell to the way bricks are laid when constructing a brick wall, except the wall consisting of these "bricks" of waste is built at an angle instead of upright. Southwest has deposited waste in three cells numbered 1, 2, and 3, and plans to construct additional cells numbered 4 through 8.

¶5 Southwest's landfill may accept only the categories of solid waste which it is engineered to hold. For the most part, Southwest accepted only construction and demolition debris for disposal in Cells 1, 2, and 3. The Solid Waste Act defines "construction and demolition debris" as "materials generally considered to be not water soluble and nonhazardous in nature" such as steel, glass, brick, concrete, lumber, rocks, and soil. NMSA 1978, § 74-9-3(D) (1990); see also 20 NMAC 9.1.I.105(T). However, if construction and demolition debris is mixed with any other type of waste, then it loses this classification. See § 74-9-3(D); 20 NMAC 9.1.I.105(T). Also, if a landfill receives more than 25 tons per day of construction and demolition waste, then it loses its status as a "construction and demolition landfill" and becomes a "municipal landfill." 20 NMAC 9.1.I.105(AM)(2). At some point, Southwest began accepting more than 25 tons per day of construction and demolition debris.

¶6 Southwest applied for a permit to operate a municipal landfill on September 25, 1995, and amended its application on July 29, 1996. In its application, Southwest proposed to deposit municipal solid waste, in addition to construction and demolition waste, in Cells 4 through 8. As defined in the Department's regulations, a "municipal landfill" may not accept hazardous waste that is regulated under Subtitle C of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6921 to 6939e (1994), but it may accept household waste and other waste regulated under Subtitle D of RCRA. 42 U.S.C. §§ 6941 to 6949a (1994); 20 NMAC 9.1.I.105(AM)(1). Household waste and RCRA Subtitle D waste may include some non-hazardous, water-soluble contaminants. 20 NMAC 9.1.I.105(AI).

¶7 For this reason, the Department's design criteria for municipal landfills are different than the criteria for construction and demolition landfills. One of the structural components required for a municipal landfill is a liner, which the Department's regulations define as a "continuous layer constructed of natural or man-made materials beneath and on the sides of a surface impoundment, landfill, or landfill cell, that restricts the downward and lateral movement of solid waste, gases or leachate." 20 NMAC 9.1.I.105(AQ). "Leachate" is further defined as "liquid that has passed through or emerged from solid waste." 20 NMAC 9.1.I.105(AO).

¶8 There is no liner beneath Cells 1, 2, and 3, and the parties do not contend that those cells are required to have a liner in order to contain the construction and demolition debris which they presently hold. However, in its permit application, Southwest proposes to construct a liner beneath Cells 4 through 8 in order to allow for the disposal of municipal solid waste in those cells. Southwest does not propose to retrofit Cells 1, 2, or 3 with liners, nor does it propose to extend the liner beneath Cell 4 so that it would completely cover the side of Cell 4 that abuts Cell 3. Instead, Southwest proposes to extend the disposal of construction and demolition debris into Cell 4 at an angle which, according to its expert's testimony, would be sufficient to restrict the lateral and downward migration of leachate so that it could not reach the adjacent, unlined cells and percolate into the groundwater beneath the landfill.

¶9 Pursuant to NMSA 1978, Sections 74-9-23(B) and 74-9-29 (1990), the Department scheduled a formal adjudicatory hearing on Southwest's permit application and appointed a hearing officer to preside at the hearing and issue a report to the Secretary. The hearing officer granted Atlixco's motion to intervene as a party. At the hearing, Atlixco's expert testified that the design proposed by Southwest was not sufficient to contain the lateral and downward migration of the leachate into Cell 3 and the groundwater beneath it. In its answer brief, Southwest acknowledged that the five-foot berm between the cells would be flattened or removed when waste is deposited in the new cell. For these reasons, Atlixco proposes adding a permit condition requiring Southwest to extend the liner beneath Cell 4 so that it completely covers the side of Cell 4 that abuts Cell 3.

¶10 The Department's regulations also require a permit applicant to identify and characterize the groundwater beneath the proposed landfill site and to construct a groundwater monitoring system to determine the effect, if any, that the landfill is having on groundwater quality. 20 NMAC 9.1.II.202(A)(7)(a); 20 NMAC 9.1.VIII.802. The parties presented conflicting evidence regarding the gradient or flow direction of the groundwater beneath Southwest's landfill. Atlixco proposes adding a permit condition that would require Southwest to install an additional monitoring well on the east side of the landfill so that any groundwater flowing in that direction can be monitored.

¶11 After hearing the testimony of the experts for each side, the hearing officer essentially agreed with Atlixco regarding the need for an additional monitoring well and a liner between Cells 3 and 4. The hearing officer's report includes, in relevant part, the following recommended findings of fact relating to the liner between the two cells and the groundwater beneath the site:

88. Cell 3 of the Landfill is an unlined cell for construction and demolition debris waste.

89. Cell 4 is a lined cell that will receive municipal solid waste.

90. The Application proposes a boundary between cell 3 and cell 4 that does not include a liner except on a berm at the base of the boundary.

91. Although the boundary between cells 3 and 4 is a total of between 95 and 108 feet, the berm is only five feet high.

92. Moisture can travel laterally within a cell, particularly if it encounters a relatively impermeable material in a horizontal direction.

93. Both municipal solid waste and construction and demolition debris waste include relatively impermeable materials, and Southwest places waste in the Landfill in horizontal layers.

94. Although the intrusion of construction and demolition debris waste into cell 4 probably will make it less likely that moisture that has been in contact with municipal solid waste will move into cell 3, that...