In re Camino Real Envtl. Ctr., Inc.

• Decision Date: 03 June 2010
• Docket Number: No. 28,857.,28,857.
• Citation: 2010 -NMCA- 057,242 P.3d 343,148 N.M. 776
• Parties: 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.
• Court: Court of Appeals of New Mexico

242 P.3d 343

148 N.M. 776

2010 -NMCA- 057

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.

No. 28,857.

Court of Appeals of New Mexico.

Feb. 10, 2010.

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

Sutin, Thayer & Browne, PC, C. Shannon Bacon, Christopher A. Holland, Albuquerque, NM, Kemp Smith, LLP, 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 "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

[148 N.M. 779, 242 P.3d 346]

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 fifty-acre area of the landfill, was closed in approximately 1992 and subsequently capped, re-vegetated, 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 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

[148 N.M. 780, 242 P.3d 347]

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

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) NMCA (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...