Southwest Organizing Project v. Albuquerque-Bernalillo County Air Quality Control Board, 101520 NMCA, A-1-CA-36398

Docket NºA-1-CA-36398
Opinion JudgeBRIANA H. ZAMORA, JUDGE
Party NameSOUTHWEST ORGANIZING PROJECT, ESTHER ABEYTA, and STEVEN ABEYTA, Plaintiffs-Appellants, v. ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD, Defendant-Appellee, and CITY OF ALBUQUERQUE ENVIRONMENTAL HEALTH DEPARTMENT, Intervenor-Appellee.
AttorneyNew Mexico Environmental Law Center Eric Jantz Douglas Meiklejohn Jaimie Park Jonathan Block Santa Fe, NM for Appellants Felicia L. Orth Los Alamos, NM Lorenz Law Alice Tomlinson Lorenz Albuquerque, NM for Defendant-Appellee Atler Law Firm, P.C. Timothy J. Atler Albuquerque, NM City of Albuquerqu...
Judge PanelWE CONCUR: JENNIFER L. ATTREP, Judge, MEGAN P. DUFFY, Judge
Case DateOctober 15, 2020
CourtCourt of Appeals of New Mexico

SOUTHWEST ORGANIZING PROJECT, ESTHER ABEYTA, and STEVEN ABEYTA, Plaintiffs-Appellants,

v.

ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD, Defendant-Appellee,

and

CITY OF ALBUQUERQUE ENVIRONMENTAL HEALTH DEPARTMENT, Intervenor-Appellee.

No. A-1-CA-36398

Court of Appeals of New Mexico

October 15, 2020

Appeal from the Albuquerque-Bernalillo County Air Quality Control Board Kelsey Curran, Vice Chair

New Mexico Environmental Law Center Eric Jantz Douglas Meiklejohn Jaimie Park Jonathan Block Santa Fe, NM for Appellants

Felicia L. Orth Los Alamos, NM Lorenz Law Alice Tomlinson Lorenz Albuquerque, NM for Defendant-Appellee

Atler Law Firm, P.C. Timothy J. Atler Albuquerque, NM City of Albuquerque Samantha Hults, Acting City Attorney Carol M. Parker, Assistant City Attorney Albuquerque, NM for Intervenor-Appellee

New Mexico Environment Department Lara Katz, Assistant General Counsel Andrew Knight, Assistant General Counsel Santa Fe, NM for Amicus Curiae New Mexico Environment Department

Montgomery & Andrews, PA Louis W. Rose Matthew A. Zidovsky Santa Fe, NM for Amicus Curiae New Mexico Association of Commerce and Industry

OPINION

BRIANA H. ZAMORA, JUDGE

{¶1} This is an appeal of the Albuquerque-Bernalillo County Air Quality Control Board's (the Board) order upholding the City of Albuquerque Environmental Health Department's (EHD) issuance of an authority-to-construct permit to Honstein Oil & Distributing, LLC, pursuant to the New Mexico Air Quality Control Act (the AQCA), NMSA 1978, §§ 74-2-1 to -17 (1967, as amended through 2019). SouthWest Organizing Project, Esther Abeyta, and Steven Abeyta (collectively, SWOP) contend that (1) the Board erred in upholding EHD's issuance of the permit because EHD failed to apply a "reasonable probability of injury" standard when evaluating the permit; (2) the Board and EHD violated the AQCA's public participation provisions by failing to consider quality of life impacts and nontechnical testimony from public participants; (3) the Board's hearing officer allowed overly burdensome and prejudicial discovery; and (4) the Board's hearing officer applied the rules of evidence in a manner contrary to the Board's adjudicatory regulations. We affirm.

BACKGROUND

I. Air Pollution Regulatory and Enforcement Authorities and Statutory Schemes

{¶2} The United States Environmental Protection Agency (the EPA) regulates the emission of airborne pollutants through the Clean Air Act, 42 U.S.C. §§ 7401-7671 (2018). Under the Act's provisions, the EPA is charged with identifying air pollutants and establishing national ambient air quality standards. 42 U.S.C. §§ 7408-7409. In contrast, the individual states are charged with implementing and enforcing EPA standards and rules at the local level to prevent and abate air pollution. See 42 U.S.C. § 7407(a) (stating that "[e]ach State shall have the primary responsibility for assuring air quality within [its] entire geographic area"); 42 U.S.C. § 7401(a)(3) ("[A]ir pollution prevention . . . is the primary responsibility of [s]tates and local governments[.]"). The Clean Air Act requires states to promulgate local regulations implementing and enforcing its provisions through a "[s]tate implementation plan." See 42 U.S.C. § 7410. New Mexico adopted the AQCA as part of such a plan. See § 74-2-2(V); 40 C.F.R. § 52.1640(c)(2) (2011); 42 U.S.C. § 7410.

{¶3} Pursuant to the terms of the AQCA, counties and municipalities that meet certain qualifications "may assume jurisdiction as a local authority by adopting an ordinance providing for the local administration and enforcement of the [AQCA]." Section 74-2-4(A). Local authorities adopting such an ordinance must create two separate entities: a local board vested with rule-making authority, and a local agency or department charged with administering the rules and regulations promulgated by the board. Sections 74-2-4(A), -5(B). Within the City of Albuquerque and Bernalillo County, the Board fulfills the role of local board and EHD serves as the local agency or department. See 20.11.81.7(E), (G) NMAC; Bernalillo County, N.M., Code, art. II, §§ 30-31 to -47 (2020); Albuquerque, N.M., Rev. Ordinances ch. 9, art. V, §§ 9-5-1-1 to -99 (1996).

{¶4} As part of its enforcement duties, EHD is charged with granting or denying requests from entities and persons seeking "construction permit[s]" to emit various pollutants. Section 74-2-7(A)(1). If a person who participated in the permitting action is adversely affected by EHD's decision to grant or deny a permit application, that person may bring a petition against EHD before the Board. See § 74-2-7(G)-(J). EHD must respond to the petition and defend its action before the Board and/or a designated hearing officer. 20.11.81.14(D) NMAC; see also § 74-2-7(J) (allowing the Board to designate a hearing officer to hold a hearing, take evidence, and make a recommendation on the disposition of the petition).

II. The Honstein Plant

{¶5} Honstein owns and operates a bulk gasoline plant that releases volatile organic compounds, a class of hazardous air pollutants. The plant was constructed in the 1920's, before enactment of the Clean Air Act and AQCA. See 42 U.S.C. §§ 7401 to 7671 (enacted in 1955); §§ 74-2-1 to -17 (enacted in 1967). Pursuant to regulations promulgated by the Board in accordance with the provisions of the AQCA, Honstein must have a valid air quality permit in order to operate the plant. See generally 20.11.64 NMAC; 20.11.65 NMAC. Prior to 2013, Honstein operated the plant without a permit. In 2013 after receiving a complaint from a concerned citizen regarding the plant's unpermitted status, EHD required Honstein to file an application for a stationary source air quality authority-to-construct permit.

{¶6} Prior to deciding on the application in this case, EHD issued a public notice regarding the permit, which detailed the procedures and deadlines for submitting comments and requesting a public hearing. It also provided notice of the pending application to nearby neighborhood associations, the New Mexico Environment Department (NMED), and the EPA. At the request of several individuals, including members of SWOP, EHD scheduled a public hearing and solicited public comments. After reviewing the evidence adduced at the public hearing, EHD granted Honstein's permit application, finding that the permit met all regulatory requirements and that "[n]one of the public comments established that the Honstein Oil facility would violate any regulations or requirements, would cause or contribute to an exceedance of an ambient air quality standard, or would violate any other provision of the [AQCA] or the Clean Air Act." On June 12, 2014, EHD issued a permit to Honstein.

{¶7} SWOP filed a petition with the Board challenging EHD's approval and issuance of the permit. The Board designated a hearing officer to preside over the required adjudicatory hearing. During the adjudicatory hearing in January 2017, SWOP offered technical testimony from three witnesses. The hearing officer also accepted public comment from twenty-four people during the three-day adjudicatory hearing. The hearing officer issued proposed findings of facts and conclusions of law, finding that SWOP had "not carried their burden of proof to show that the Honstein Oil facility would violate applicable standards, rules or requirements of the [AQCA] or the Clean Air Act" and recommending that the permit be upheld as issued. The Board unanimously adopted the hearing officer's findings of fact and conclusions of law and upheld the permit as issued. SWOP appeals.[1]

DISCUSSION

{¶8} On appeal, SWOP argues that (1) the Board erred in upholding EHD's issuance of the permit because EHD failed to apply a "reasonable probability of injury" standard when evaluating the permit; (2) the Board and EHD violated the AQCA's public participation provisions by failing to consider quality of life impacts and non-technical testimony from public participants; (3) the Board's hearing officer allowed overly burdensome and prejudicial discovery; and (4) the Board's hearing officer applied the rules of evidence in a manner contrary to the Board's adjudicatory regulations.2 We address each argument in turn.

I. Standard of Review

{¶9}This Court has jurisdiction to review an appeal taken by "[a]ny person adversely affected by an administrative action" by the Board. Section 74-2-9(A). We will only set aside the action of the Board if its decision was "(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 74-2-9(C). "A ruling by an administrative agency is arbitrary and capricious if it is unreasonable or without a rational basis, when viewed in light of the whole record." 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. Interpretation of the AQCA is a question of law that we review de novo. See N.M. Att'y Gen. v. N.M. Pub. Regul. Comm'n, 2013-NMSC-042, ¶ 10, 309 P.3d 89.

II. The Board's Obligation to Abate Air Pollution, as Defined in Section 74-2-2(B), Does Not Establish an Independent Standard Applicable to the Permitting Process

{¶10} SWOP argues that the Board erred in upholding EHD's decision because neither the Board nor EHD considered whether there was a reasonable probability that emissions from the Honstein plant might "cause injury to human health or property, either alone or in combination with other air pollution sources." SWOP extrapolates this reasonable probability of injury standard from Section 74-2-2(B) of the AQCA which defines "air pollution" as the emission, except emission that occurs in nature, into the outdoor...

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