Nmma v. N.M. Water Quality Control Comm.

• Decision Date: 22 November 2006
• Docket Number: No. 25,186.,No. 25,191.,25,186.,25,191.
• Citation: 2007 NMCA 010,150 P.3d 991
• Parties: In the Matter of the Petition to Amend Ground Water Quality Standards Contained in 20.6.2 NMAC NEW MEXICO MINING ASSOCIATION and New Mexico Oil and Gas Association, Appellants, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, New Mexico Environment Department, and New Mexico Department of Health, Appellees, and Eastern Navajo Diné Against Uranium Mining, Intervenor-Appellee.
• Court: Court of Appeals of New Mexico

150 P.3d 991

2007 NMCA 010

In the Matter of the Petition to Amend Ground Water Quality Standards Contained in 20.6.2 NMAC NEW MEXICO MINING ASSOCIATION and New Mexico Oil and Gas Association, Appellants, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, New Mexico Environment Department, and New Mexico Department of Health, Appellees, and Eastern Navajo Diné Against Uranium Mining, Intervenor-Appellee.

No. 25,186.

No. 25,191.

Court of Appeals of New Mexico.

November 22, 2006.

COPYRIGHT MATERIAL OMITTED

Comeau, Maldegen, Templeman & Indall, LLP, Jon J. Indall, Stephen J. Lauer, Sharon W. Horndeski, Santa Fe, NM, for Appellant New Mexico Mining Association.

Miller Stratvert P.A., J. Scott Hall, Santa Fe, NM, for Appellant New Mexico Oil and Gas Association.

Patricia A. Madrid, Attorney General, Zachary A. Shandler, Assistant Attorney General, Charles F. Noble, Special Assistant Attorney General, Jerry A. Dickinson, Special Assistant Attorney General, Santa Fe, NM, for Appellees.

New Mexico Environmental Law Center, Eric D. Jantz, Douglas Meiklejohn, Roderick Ventura, Sarah Piltch, Santa Fe, NM, for Intervenor-Appellee Eastern Navajo Diné Against Uranium Mining.

OPINION

CASTILLO, Judge.

{1} In this case, we review the action of New Mexico's Water Quality Control Commission (Commission) in revising the water quality standard for uranium in groundwater. We conclude that the Commission properly amended the standard pursuant to NMSA 1978, § 74-6-4(C) (2003), and that credible scientific data existed in the record to support its action. Appropriate review of Appellants' remaining concerns can be conducted only after the standard has been applied to a fact-specific situation. Accordingly, we affirm.

I. BACKGROUND

A. Facts

{2} In October 2002, the New Mexico Environment Department (Department) petitioned the Commission to revise New Mexico's numeric human health standard for uranium in groundwater. See NMSA 1978, § 74-6-6(B) (1993); 20.6.2.3103(A)(12) NMAC. The Department asked the Commission to lower the standard for uranium from 5 milligrams per liter (mg/L) to 0.007 mg/L because of the toxic effects of uranium on the public's health and particularly because the state has a high Native American and Hispanic population, which is especially susceptible to those effects.¹

{3} Prior to filing its petition, the Department requested public comment from interested parties. Interested parties, including the New Mexico Mining Association (NMMA) and the New Mexico Oil and Gas Association (NMOGA) (together, Appellants), had the opportunity to submit comments and to participate in seven days of hearing, over the course of several months, where substantial scientific, medical, and technical testimony was presented. After public deliberation in June 2004, the Commission voted unanimously to change the numeric standard for uranium in groundwater from 5 mg/L to 0.03 mg/L, pursuant to Section 74-6-4(C). Subsequently, the Commission issued its statement of reasons with its final order, from which Appellants appeal.

{4} The new standard, 0.03 mg/L is the same as the United States Environmental Protection Agency's (EPA) standard for drinking water. See 40 C.F.R. § 141.66(e) (2005). The parties agree that the previous standard, 5 mg/L, is not protective of public health. Because it was the standard in effect at the pertinent times, the 5 mg/L standard was used by uranium operators to develop remediation and closure strategies. Of those mine and mill sites where documentation exists, the groundwater samples at all but one site are in compliance with the 5 mg/L standard. The Commission's new standard for uranium became effective for new water discharges on September 26, 2004, and it becomes effective on June 1, 2007, for past discharges and discharges in existence as of September 26, 2004. See 20.6.2.3103 note NMAC.

B. Appellants' Arguments

{5} Appellants challenge the amendment to the numeric standard for uranium on grounds that the standard is unattainable and economically infeasible when applied to abatement of contamination at uranium mills or mines. Since existing abatement plans are not affected, we understand that Appellants' concerns center primarily on the effect of the new standard on abatement currently conducted under discharge plans and on new abatements that would be required under the revised standard. Compare 20.6.2.3109(E) NMAC with 20.6.2.4101(B) NMAC. Secondarily, Appellants express concern regarding the effect of the new standard on future mining.

{6} Appellants contend that the Commission's action was arbitrary and capricious and a violation of New Mexico's Water Quality Act, NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through 2005) (WQA), because the revised standard is unattainable. They argue that the Commission was required to adopt the revised standard pursuant to Section 74-6-4(D) and that therefore the Commission acted improperly because it failed to consider technical feasibility and economic reasonableness and failed to establish the existence of "available demonstrated control technology." Thus, Appellants assert that the Commission failed to engage in reasoned decision making and, consequently, ask this Court to reverse the decision of the Commission. See Atlixco Coal. v. Maggiore, 1998-NMCA-134, ¶ 2, 125 N.M. 786, 965 P.2d 370 (remanding for "more reasoned decision making"). We review the Commission's actions pursuant to NMSA 1978, § 74-6-7 (1993).

C. Statutory and Regulatory Framework

{7} An overview of the relevant statutes and regulations is essential to our analysis. The Commission was created by the WQA. See § 74-6-3; Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 93 N.M. 546, 555, 603 P.2d 285, 294 (1979) (stating that the objective of the WQA is to abate and prevent water pollution). The Commission is authorized to adopt water quality standards, which "shall at a minimum protect the public health or welfare, enhance the quality of water and serve the purposes of the Water Quality Act." Section 74-6-4(C). It is also empowered to adopt regulations for the prevention or abatement of water pollution. Section 74-6-4(D). To protect groundwater, the Commission has adopted regulations and standards, including human health standards, that control discharges and provide for remediation and protection of groundwater for use as domestic and agricultural water supply. See 20.6.2.3101(A); .4101(A) NMAC. The human health standards include the numeric standard for uranium. 20.6.2.3103(A) NMAC.

{8} The Commission is administratively attached to the Department, which is a "constituent agency" charged with implementing regulations promulgated by the Commission. Sections 74-6-2(K)(1), -3(F), -8; see §§ 74-6-5, -9; 20.6.2.7(N) NMAC. As a constituent agency under the WQA, the Department is charged with issuing permits for the discharge of water containing identified contaminants, Section 74-6-5(A); 20.6.2.3104 NMAC, and administering regulations regarding abatement of pollution. See § 74-6-4(E); 20.6.2.4104(A) NMAC; see also §§ 74-6-9, -11. The numeric human health standards established by the Commission are incorporated by reference into regulations that guide the Department in its administration of discharge permits and abatement plans. See 20.6.2.3101, .3104, .4103(B), .4104 NMAC. The Department is directed to deny an application for a discharge permit if, inter alia, (1) the discharge would not meet applicable effluent regulations, standards of performance or limitations; (2) any provision of the WQA would be violated, or; (3) "the discharge would cause or contribute to water contaminant levels in excess of any state or federal standard," to be determined by measuring the effect of the discharge on groundwater "at any place of withdrawal of water for present or reasonably foreseeable future use." Section 74-6-5(E). Thus, regulations regarding discharge permits incorporate by reference the numeric standard for uranium, and a regulated entity could be subject to consequences for failure to meet the standard. See, e.g., 20.6.2.3101(A)(1)-(2) NMAC (using the standards to determine whether degradation of the groundwater will be allowed); 20.6.2.3107(A)(11) NMAC (requiring a closure plan that will "prevent the exceedance of [water quality] standards . . . in ground water . . . or abate such contamination"); 20.6.2.3109(C)(2) NMAC (providing that a proposed discharge plan, modification, or renewal cannot result in concentrations in excess of the standards at any place of withdrawal of water for present or reasonably foreseeable future use, unless an exception applies); 20.6.2.3109(E) NMAC (providing that noncompliance with the standards, "in ground water at any place of withdrawal for present or reasonably foreseeable future use," may result in a discharge permit modification that requires abatement or prevention); 20.6.2.3109(F) NMAC (providing that if a discharge permit is terminated or expires, an abatement plan may be required if contamination levels exceed or will exceed standards).

{9} Regulations regarding abatement plans also incorporate the numeric standard for uranium. See 20.6.2.4103(B) NMAC (requiring abatement of groundwater pollution, at any place of withdrawal for present or reasonably foreseeable future use, to conform to the groundwater standards); see also 20.6.2.4101(B) NMAC (requiring abatement by the person responsible for a background concentration of a water contaminant that exceeds the groundwater standards). The purpose of the abatement regulations is to remediate or protect all groundwater for use as domestic and agricultural water supply. 20.6.2.4101(A)(1) NMAC. If a person responsible for contamination cannot meet the abatement standards through the use of appropriate technology and procedure, the secretary may approve a technical infeasibility proposal involving the use of experimental abatement technology, provided the resulting concentration of contaminants is...