 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 NEW MEXICO ENVIRONMENT
 8 DEPARTMENT ENVIRONMENTAL
 9 PROTECTION DIVISION,

10          Petitioner-Appellee,

11 v.                                                           NO. 29,910

12 TOWN OF VAUGHN, NEW MEXICO,

13          Respondent-Appellant.

14 APPEAL FROM THE SECRETARY                                  OF     THE       NEW       MEXICO
15 ENVIRONMENT DEPARTMENT
16 Felicia Orth, Hearing Officer

17 New Mexico Environment Department
18 Misty M. Braswell, Office of the General Counsel
19 Santa Fe, NM

20 for Appellee

21 The Romero Law Firm, P.A.
22 David E. Romero, Jr.
23 Las Vegas, NM

24 for Appellant

25                                 MEMORANDUM OPINION

26 FRY, Chief Judge.
 1        Appellant-Respondent the Town of Vaughn (the Town) appeals from the final

 2 order issued by the Secretary of the Environment Department that, among other

 3 matters, upholds the administrative compliance order [RP 2-14] issued by the New

 4 Mexico Environment Department (NMED) for violations of the New Mexico Solid

 5 Waste Act, including imposition of the $214,100 civil penalty. [RP 134] Our notice

 6 proposed to affirm, and the Town filed a timely memorandum in opposition pursuant

 7 to a granted motion for extension of time. We remain unpersuaded by the Town’s

 8 arguments, and therefore affirm.

 9        Below, and on appeal, the Town does not dispute the underlying violations of

10 the Solid Waste Act which form the basis for the administrative compliance order and

11 the Secretary’s order. Instead, the Town’s arguments relate to the central defense that

12 the case should have been dismissed because NMED failed to provide funding to the

13 Town to pay for the cost of the compliance with the Solid Waste Act, NMSA 1978,

14 §§ 74-9-1 to -43 (1990, amended through 2001). [DS 4; RP 41-43, 111, 127]

15        In support of its position, the Town refers [RP 41; DS 2; MIO 1; Transcript

16 163-64] to N.M. Const. art. X, § 8, which provides:

17               A state rule or regulation mandating any county or city to engage
18        in any new activity, to provide any new service or to increase any current
19        level of activity or to provide any service beyond that required by
20        existing law, shall not have the force of law, unless, or until, the state
21        provides sufficient new funding or a means of new funding to the county
22        or city to pay the cost of performing the mandated activity or service for

                                              2
 1        the period of time during which the activity or service is required to be
 2        performed.

 3        As provided in our notice, this constitutional provision is inapplicable because

 4 NMED did not mandate the Town to operate a solid waste facility in the first instance,

 5 or to otherwise engage in any new services or to increase any current level of activity.

 6 [RP 72, 111-12] Rather, the Town itself elected to operate a solid waste facility. [RP

 7 135] Once the Town elected to do so, it was required to comply with the Solid Waste

 8 Act to ensure that its operation did not harm the environment or endanger public

 9 health and safety. See § 74-9-31(A)(5). And any resultant costs of such required

10 compliance stemmed from its own election to operate a landfill as opposed to any

11 mandate by NMED to do so.            In such instance, the Town’s reliance on the

12 constitutional provision is misguided.

13        In an effort to trigger application of the constitutional provision, the Town in

14 its memorandum in opposition disputes our conclusion, as well as that of the hearing

15 officer [RP 110, 112] and the Secretary [RP 135], that NMED did not mandate the

16 Town to operate a solid waste facility in the first instance. [MIO 2, 4] Specifically,

17 the Town asserts that “[t]here is no where in the [r]ecord [p]roper that a witness makes

18 that kind of statement by the Hearing Officer and Secretary as conclusions to their

19 findings.” [MIO 2] To the extent that the record lacks evidence regarding whether

20 the State required the Town to open a landfill, this reflects a failure by the Town to

                                              3
 1 develop its defense or present evidence on behalf of its position that the State failed

 2 to provide adequate funding to operate the landfill in compliance with the Solid Waste

 3 Act. Once NMED presented a prima facie case to support the Solid Waste Act

 4 violations as set forth in its administrative compliance order [RP 2], the Town had the

 5 burden to present any evidence in support of its defense relating to a lack of funding.

 6 In this regard, the Town failed to present any evidence below or on appeal in support

 7 of the position that NMED required it to operate that facility in the first instance so as

 8 to trigger application of N.M. Const. art. X, § 8. [RP 117; Transcript/117-18, 150]

 9 Similarly, although the Town suggests evidence should have been presented regarding

10 when the landfill was opened and whether the requirements of the Solid Waste Act

11 predated the opening of the landfill [MIO 5], these were also matters for the Town to

12 establish as part of its defense. See 20.1.5.400(C) NMAC (11/2701) (stating that the

13 “[c]omplainant has the burden of going forward with the evidence and of proving by

14 a preponderance of the evidence the facts relied upon to show the violation occurred

15 and that the proposed civil penalty is appropriate [and] [f]ollowing the establishment

16 of a prima facie case, the Respondent shall have the burden of going forward with any

17 adverse evidence or defense to the allegations”); see also Acme Cigarette Servs., Inc.

18 v. Gallegos, 91 N.M. 577, 580-81, 577 P.2d 885, 888-89 (Ct. App. 1978) (providing




                                               4
 1 that the defendant bears the burden of proof and production when claiming an

 2 affirmative defense).

 3        Lastly, we do not agree that the statutory provisions of the Solid Waste Act

 4 required NMED to provide funding to the Town. [DS 3; MIO 5; RP 42, 132] We

 5 acknowledge that the director of the environmental improvement division is required

 6 to prepare and submit to the environmental improvement board for approval a solid

 7 waste management plan, see §§ 74-9-4, -7, and that such plan is to include a funding

 8 element that includes a projected cost of implementation of the plan and

 9 recommendations for developing revenue sources for plan implementation. [MIO 3]

10 See § 74-9-6(G). But we do not agree that these requirements are such that NMED

11 is the required source of such funding. [MIO 3] Rather, as noted above, the statutory

12 provisions of the Solid Waste Act require that an entity who elects to operate a solid

13 waste facility do so in a manner that does not harm the environment or endanger

14 public health and safety. The director’s role in developing a plan is to ensure that an

15 entity complies with the Solid Waste Act, including meeting any necessary funding

16 requirements. [RP 73]

17 CONCLUSION

18        Based on the foregoing discussion, we affirm.

19        IT IS SO ORDERED.


                                              5
1
2   CYNTHIA A. FRY, Chief Judge




      6
1 WE CONCUR:



2
3 JONATHAN B. SUTIN, Judge



4
5 MICHAEL E. VIGIL, Judge




                             7
