Matter of Application of Rhino Environmental Services, 2003 NMCA 141 (N.M. App. 10/3/2003)
| Decision Date | 03 October 2003 |
| Docket Number | Docket No. 22,932. |
| Citation | 2003 NMCA 141 |
| Parties | IN THE MATTER OF THE APPLICATION OF RHINO ENVIRONMENTAL SERVICES, PETITIONER FOR A SOLID WASTE LANDFILL PERMIT FOR THE RHINO SOLID WASTE FACILITY COLONIAS DEVELOPMENT COUNCIL, Appellant, v. RHINO ENVIRONMENTAL SERVICES, INC. and the NEW MEXICO ENVIRONMENT DEPARTMENT, Appellees. |
| Court | Court of Appeals of New Mexico |
Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C., for Appellant.
Clay Clarke, Assistant General Counsel, Special Assistant Attorney General, for Appellee The New Mexico Environment Dept.
C. Shannon Bacon, John G. Baugh, Eaves, Bardacke, Baugh, Kierst & Kiernan, P.A., for Appellee Rhino Environmental Services, Inc.
{1} The Colonias Development Council (CDC) seeks to reverse a decision of the New Mexico Environment Department (NMED or the Department) issuing a permit to Rhino Environmental Services, Inc. (Rhino) to operate a landfill near Chaparral, New Mexico. We address CDC's claims that the Department did not comply with the Solid Waste Act, NMSA 1978, §§ 74-9-1 to -43 (1990, as amended through 2001) (the Act), and the regulations adopted pursuant to the Act, because the Department failed to consider the "social impact" of the landfill on the community of Chaparral, and failed to consider regional planning. We also address CDC's claims that it was denied due process because the hearing officer refused to grant a continuance of the public hearing, and demonstrated bias. We hold that the Department properly considered the applicable regulatory requirements, reject the other claims, and affirm.
{2} Rhino filed an application with NMED for a permit to operate a landfill near Chaparral. Section 74-9-23(B) requires the Department to hold a public hearing on the application within 60 days from the date the application is deemed complete and Section 74-9-24(A) requires the Secretary to rule on the application within 180 days after the application is deemed complete.
{3} Consistent with statutory requirements, the Department scheduled a public hearing in Chaparral that began on September 10, 2001, CDC is an interested party who opposed the application. There was strong opposition to the proposed landfill, and emotions ran high during much of the public hearing. Additionally, the terrorist attacks on September 11, 2001, (September 11th) made an already emotionally charged hearing even more difficult. The impact of the events of September 11th affected the hearing in several ways, which we discuss later in this opinion.
{4} After the hearing, the hearing officer filed a report recommending that the Secretary grant the permit. The Secretary, acting through his designee, the Director of the Water and Waste Management Division (referred to in this opinion as the Secretary), granted the permit, with conditions, for a period of 10 years. CDC appeals that decision. The Chaparral Community Health Council (CCHC) also appeared as a party but has not appealed.
{5} CDC appeals the order granting the permit directly to this Court under the authority of Section 74-9-30, which provides that we shall set aside the order only if it 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." Id. "[A]n agency's action is arbitrary and capricious if it provides no rational connection between the facts found and the choices made, or entirely omits consideration of relevant factors or important aspects of the problem at hand." Atlixco Coalition v. Maggiore, 1998-NMCA-134, ¶ 24, 125 N.M. 786, 965 P.2d 370. CDC's claims that the hearing officer and the Secretary failed to consider "social impact" and regional planning involve statutory interpretation. We review these claims de novo. See Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, ¶ 13, 133 N.M. 97, 61 P.3d 806 ().
{6} CDC recognizes that NMED's permitting procedure is "heavily, if not entirely, weighted on the technical side." The record in this case is voluminous and contains a great deal of evidence on technical issues such as impacts on groundwater, reclamation after closure, and similar topics, which CDC does not challenge on appeal. Instead, it argues that NMED did not consider regional planning or the "social impact" of the landfill on the neighboring community of Chaparral, and that the Act required NMED to do so.
{7} CDC and certain citizens of Chaparral spoke against having a landfill near the community. Many people did not want to live near a landfill, and expressed general fears about the potential impact of a landfill on their air and water. Some felt it was unfair to put another landfill near Chaparral when there were two or three others already nearby. One person assumed the landfill would "poison" the residents. Another theme expressed was that the landfill should be located in the desert, far from people.
{8} Sister Diana Wauters, who has a master's degree in social work, testified that having a landfill near Chaparral would have a negative collective psychic impact on the community. She said the landfill would create a perception in the community that it was a dumping ground, and it would stigmatize the community. She concluded the collective morale of the community would suffer, even if no physical harm was caused by the landfill. She urged the hearing officer to weigh "considerations of a more sociological nature."
{9} CDC argues that the foregoing "social impact" of the landfill, coupled with general community opposition to the landfill, are factors that must be considered by NMED in determining whether to grant a solid waste permit. CDC argues that NMED's failure to weigh these claimed mandatory factors invalidates the permit grant.
{10} To support its argument that a consideration of "social impact" is statutorily required, CDC relies on language in Section 74-9-2, which states that one purpose of the Act is to "enhance the beauty and quality of the environment; conserve, recover and recycle resources; and protect the public health, safety and welfare." Section 74-9-2(C) (emphasis added). CDC further relies on Section 74-9-8(A)'s command that the Environmental Improvement Board shall adopt regulations to:
A. implement, administer and enforce a program for the cost-effective and environmentally safe siting, construction, operation, maintenance, closure and post-closure care of solid waste facilities, including financial responsibility requirements for solid waste facility owners and operators also including requirements that assure that the relative interests of the applicant, other owners of property likely to be affected and the general public will be considered prior to the issuance of a permit for a solid waste facility[.]
Id. (Emphasis added.)
{11} CDC contends that since one of the purposes of the Act is to "protect the public health, safety and welfare," Section 74-9-2(C) and Section 74-9-8(A) require consideration of the "relative interests . . . of other owners of property likely to be affected and the general public" in regulations, the "social impact" of a landfill must be considered as a prerequisite to granting a landfill permit. CDC also argues that the "social well-being" of the public also provides a basis to conclude that the Act required NMED to consider the social impact of the landfill on Chaparral's citizens.
{12} Our primary task in interpreting a statute is to determine legislative intent. See Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55. The plain language of the statute is the first indicator of legislative intent. See High Ridge Hinkle Joint Venture v. Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599. We will not "read into a statute language that is not there, particularly if it makes sense as written." Id. (internal quotation marks and citation omitted).
{13} The Act never uses the phrase "social impact." The purpose section does mention the goal of protecting the "public health, safety and welfare," § 74-9-2, but this language is extremely general, and commonly used to invoke the police power of the State. See generally State ex rel. City of Albuquerque v. Lavender, 69 N.M. 220, 231, 365 P.2d 652, 659 (1961) (). We reject CDC's argument based on the purpose section of the Act. The Act never mentions "social impact." "Social well-being" is not mentioned either, and even if "social well-being" is included within the broad concept of "public health, safety and welfare," we are not convinced that the Legislature intended that NMED be required to consider the "social impact" on the neighboring community when the Department grants or denies a landfill permit.
{14} CDC argues that regulations must provide for consideration of the "relative interests of the applicant, other owners of property likely to be affected and the general public." Section 74-9-8(A). However, this language makes no reference to "social impact" and only contains a general requirement that the regulations must balance the interests of an applicant, property owners likely to be affected, and the general public. The statute simply recites the common sense requirement that, in adopting regulations, the broad spectrum of interests of all affected parties should be considered without favoring the interests of a particular group.
{15} We are not persuaded that CDC's interpretation of the Act is correct. The broad interpretation of the Solid Waste Act urged by...
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