Tenneco Oil Co. v. New Mexico Water Quality Control Com'n
| Decision Date | 22 December 1987 |
| Docket Number | 9106,Nos. 9103,s. 9103 |
| Citation | 1987 NMCA 153,760 P.2d 161,107 N.M. 469 |
| Parties | TENNECO OIL COMPANY, Petitioner-Appellant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Respondent-Appellee, NAVAJO REFINING COMPANY, Petitioner-Appellant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Respondent-Appellee. |
| Court | Court of Appeals of New Mexico |
Tenneco Oil Company and Navajo Refining Company appeal from the New Mexico Water Quality Control Commission's adoption of regulations establishing numerical standards for fourteen organic compounds 1 in groundwater. The issues raised in this consolidated appeal are: (1) what standard of review should this court apply; (2) whether the Commission's decision was arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law; and (3) whether the decision was based on substantial evidence. We affirm.
Prior to the adoption of the regulations, the Commission received testimony and evidence at its public hearing on September 4-6, 1985. Then, at its public meeting on December 10-11, 1985, the Commission considered the evidence presented at the earlier hearing, voted to adopt the regulations, and asked its counsel to compile a statement of reasons based on the discussions during that meeting. This compilation was adopted at a public meeting on January 14, 1986. The regulations establishing the numerical standards were filed two weeks later.
The Water Quality Act, NMSA 1978, Sections 74-6-1 to -13 (Repl.1986) specifically provides for judicial review of regulations adopted by the Commission. Section 74-6-7(A) states that "appeals shall be upon the record made at the hearing," and subsection (C) requires a regulation to be set aside 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." (Emphasis added.)
While the parties agree that Section 74-6-7(A) and (C) sets forth the standard of review applicable to this appeal, they disagree as to what constitutes the record for review. Navajo argues that based on the Open Meetings Act, NMSA 1978, Sections 10-15-1 to -4 (Repl.Pamp.1987), only the transcript and minutes of the Commission's December public meeting comprise the record, since a public body may deliberate and vote only at a public meeting. Sec. 10-15-1. The Commission contends that Section 74-6-7 mandates that our review include the record of the two public meetings and the public hearing and cites to Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd., 101 N.M. 291, 681 P.2d 717 (1984), for support. Tenneco also relies on Duke City Lumber Co. when it claims that the substantial evidence rule requires that we examine the entire administrative record. We agree with Tenneco and hold that our review must encompass the record of the three Commission sessions.
In Duke City Lumber Co., the standard of review in the Air Quality Control Act, NMSA 1978, Sections 74-2-1 to -17 (Repl.Pamp.1983), was considered in an appeal from the denial of a variance. The court construed the judicial review provisions and decided to:
expressly modify the substantial evidence rule * * * and supplement it with the whole record standard for judicial review of findings of fact made by administrative agencies. A review of the whole record is clearly indicated in those cases where the administrative agency serves not only as the factfinder but also as the complainant and prosecutor.
101 N.M. at 294, 681 P.2d at 720.
Although Duke City Lumber Co. involved adjudication rather than rule-making, Section 74-2-9 of the Air Quality Control Act is similar to Section 74-6-7 of the Water Quality Act in providing that: "appeals shall be upon the record made at the hearing " and the court of appeals shall set aside the denial of a variance "not supported by substantial evidence in the record." (Emphasis added.) We therefore find that Duke City Lumber Co.'s express application of the whole record standard of judicial review to findings of fact made by administrative agencies in general controls where the Commission acts in its rule-making capacity.
Appellants maintain that the Commission's decision in setting numerical standards should be set aside, pursuant to Section 74-6-7(C), because it was arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law. Appellants allege that the Commission's rule-making failed to meet various procedural and statutory requirements. Each allegation will be considered separately.
Appellants claim that the record does not contain evidence of the Commission's consideration of factors two through six, found in Section 74-6-4(D) of the Water Quality Act; thus, the Commission's decision was arbitrary, capricious, and not in accordance with law. The Commission responds that it did consider all factors and gave them the weight it deemed appropriate. The Commission acknowledges that, as proponent of the regulations, it has the initial burden of proof in establishing that it did consider all six factors. Cf. International Minerals & Chem. Corp. v. New Mexico Public Serv. Comm'n, 81 N.M. 280, 466 P.2d 557 (1970) ().
In delineating the Commission's duties and powers, Section 74-6-4(D) requires that it:
shall adopt * * * regulations to prevent or abate water pollution in the state * * *. Regulations shall not specify the method to be used to prevent or abate water pollution, but may specify a standard of performance for new sources which reflects the greatest degree of effluent reduction which the commission determines to be achievable through application of the best available demonstrated control technology * * * including where practicable, a standard permitting no discharge of pollutants. In making its regulations, the commission shall give weight it deems appropriate to all facts and circumstances, including but not limited to:
(1) character and degree of injury to or interference with health, welfare and property;
(2) the public interest, including social and economic value of the sources of water contaminants;
(3) technical practicability and economic reasonableness of reducing or eliminating water contaminants from the sources involved and previous experience with equipment and methods available to control the water contaminants involved;
(4) successive uses, including but not limited to, domestic, commercial, industrial, pastoral, agricultural, wildlife and recreational uses;
(5) feasibility of a user or a subsequent user treating the water before a subsequent use; and
(6) property rights and accustomed uses * * *.
The record contains considerable evidence for all fourteen organic compounds on factor one, injury to health and welfare. The Commission interpreted factor two to mean principally the public health interest, and there is evidence that this interest is better served by preventing groundwater contamination, rather than by costlier remedial action or mitigation. Regarding factor three, an Environmental Improvement Division witness testified as to the availability and cost of treatment technologies for remedial actions in cleaning groundwater contaminated by the two general chemical categories to which the fourteen compounds belong. 2 The witness explained the significance for treatment technologies of grouping classes of compounds by their physical and chemical properties, and testified that the cost of contamination prevention was less than the cost of mitigation. Evidence was also presented on the availability of treatment technologies for the prevention of contamination by the subject compounds. For one prevention technology--pond lining--the record includes examples of its installation by several New Mexico companies and its cost. Factor four, successive use, was considered in the context of protection for the highest standard of groundwater use, that is, a drinking-water standard. Also made part of the record is a Commission report that ninety percent of the water used by three-fourths of the state's population is supplied by public systems having groundwater sources. As to factor five, feasibility of treatment before a subsequent use, an EID witness testified that, depending upon the particular process, a municipal water treatment system may not be adequate to remove the subject contaminants from groundwater. On factor six, there is evidence relating to in-state property damage caused by contamination by the general classes of subject compounds, such as damage to a municipal public water well. Having reviewed the record, we conclude that the Commission made a prima facie showing that it did consider the six criteria listed in Section 74-6-4(D).
Appellants further contend that Section 74-6-4(D) requires the record to contain the Commission's consideration of every part within the six factors for each organic compound, and because that consideration is absent, the regulations should be set aside as arbitrary and capricious.
In construing statutes, the reviewing court must give effect to the intention of the legislature. Atencio v. Board of Educ., 99 N.M. 168, 655 P.2d 1012 (1982). The plain language of a statute is the primary indicator of that intent. General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985). Although the reviewing court will not read into a...
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