       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: July 11, 2014

Docket No. 32,499

SOUTHWEST RESEARCH AND
INFORMATION CENTER and
MARGARET ELIZABETH RICHARDS,

       Plaintiffs-Appellants,

v.

NEW MEXICO ENVIRONMENT
DEPARTMENT,

       Defendant-Appellee.

IN THE MATTER OF THE APPLICATION
FOR A CLASS 2 MODIFICATION FOR
SHIELDED CONTAINERS FOR REMOTE-
HANDLED TRANSURANIC WASTE AT THE
WASTE ISOLATION PILOT PLANT.

APPEAL FROM THE NEW MEXICO ENVIRONMENT DEPARTMENT
Dave Martin, Secretary

Lindsay A. Lovejoy, Jr.
Santa Fe, NM

for Appellants

New Mexico Environment Department
Charles de Saillan, Special Assistant Attorney General
Santa Fe, NM

for Appellee

Kenneth J. Gonzales, United States Attorney, District of New Mexico
Michael H. Hoses, Assistant United States Attorney
Albuquerque, NM

                                           1
United States Department of Energy
Environment and Natural Resources Division
Robert G. Dreher, Acting Assistant Attorney General
Eileen T. McDonough, Environmental Defense Section
Washington, D.C.

for Intervenor United States Department of Energy

                                          OPINION

SUTIN, Judge.

INTRODUCTORY COMMENTS

{1}     This case was submitted to a panel of this Court in December 2013. As will be
discussed in detail in this Opinion that follows this preface, the appeal raised legal,
procedural questions related to the New Mexico Energy Department’s (NMED) approval of
a permit modification request to allow the WIPP site to accept waste in a newly developed
shielded container. As this Court was working toward issuance of an opinion in this matter,
news of the February 2014 fire and radiation leak at the WIPP site led the Court to determine
that prudence warranted postponing the issuance of an opinion until more was known about
the February 2014 incidents. In April 2014, we set a hearing for June 26, 2014, and ordered
the parties to apprise the Court of the impact of the recent developments, if any, on the issues
before the Court in this appeal. The hearing notice stated, in part:

               The Court in particular requests the views of the parties as to whether
       it should continue its analyses and deliberations at this time in light of the
       uncertainty about what may or may not be required or changed in the future
       in regard to operations and safety equipment that may have some impact on
       the issues before the Court.

Attorneys representing NMED, the federal Department of Energy (DOE), and Southwest
Research and Information Center (Southwest Research) presented their respective views in
the June 26, 2014, hearing.

{2}     All parties agreed in the hearing that the WIPP site was closed and that it was not
possible to estimate, with any degree of certainty, when the site would open. Southwest
Research indicated that the site may never again be reopened given the extent of the
contamination of the site. Based on the facts known to date, the extensive amount of
investigation and analysis devoted to resolving the issues and the amount of money being
allocated by Congress for recovery and opening, NMED was confident that the site would
open at some point. DOE also expressed confidence that the site would open, but likely not
before 2015 or 2016.


                                               2
{3}     Southwest Research’s position at the hearing was that it was premature to make a
decision on the propriety of the shielded container-related modification given the many
uncertainties, including, without limitation, what caused the radiation leak, whether a
decision must be made to close WIPP permanently, whether, if WIPP is opened at some
point, the opening will be subject to material changes in drums or shielded containers, in
procedures for storage, and in infrastructure requiring a redesign of the WIPP site and its
functions. Southwest Research requested that this Court remand the matter to NMED with
instructions to revisit the approval of the shielded container-related permit modification
request. In Southwest Research’s view, remand would allow NMED to consider the
propriety of the permit modification in the context of any changes to WIPP that will likely
be required as a result of the February 2014 incidents before the facility may open.

{4}     NMED and DOE shared a view that it was not likely that anything that arose from
the ongoing investigations and analyses of the February 2014 incidents would impact the
issues in the case before this Court. NMED and DOE indicated that there was no reason to
believe that changes relating to waste storage in the future, upon the opening of the site
would impact or affect the storage of shielded containers as allowed in the present
modification, and that all of the issues in the present appeal had been fully aired before the
NMED, and that, therefore, a decision from this Court was warranted. Further, NMED and
DOE expressed their desire for an opinion in the present appeal in order to provide some
certainty for planning purposes with respect to the shielded containers in the context of
developing plans to reopen the WIPP site. NMED and DOE also gave assurances that if,
during the continuing investigations and analyses of the February 2014 incidents and issues
arising out of those incidents, it was determined that any changes required could have an
impact on the storage of shielded containers, NMED and DOE would address that as it arose
and, if necessary, vacate or amend the relevant permit modification.

{5}    This Court required the June 26, 2014, hearing because it was clear that the February
2014 incidents and the ongoing extensive investigations and analyses were a matter of
important and ongoing public interest. After the discussions at the hearing, the Court has
determined to address the merits of the issues on appeal.

{6}      In the Opinion that follows, we affirm NMED’s approval of the permit modification
request to allow WIPP to accept shielded containers. In issuing this Opinion, we point to
four important circumstances. First, when this case was submitted to the Court, the February
2014 incidents had not yet occurred. The parties have devoted considerable time and
expense to this case, which involves issues that may recur concerning the permit
modification process. Second, other than the uncertainty that will not be fully quelled until
the numerous investigations into the February 2014 incidents are complete and the
conclusions reported, there is nothing before the Court at this time indicating that there will
be any changes at WIPP that will impact the issues before this Court. The facts at this point
do not indicate that either the fire or the leak was in any way related to a shielded container
or its storage at the WIPP site. Third, based on the statements and representations of NMED
and DOE, implementation of changes at WIPP may require a permit modification or

                                              3
modifications that may include necessary material changes concerning the storage of
shielded containers. Fourth, regardless, NMED has assured the Court that, as regulations
require, it will address any changes that may impact the storage of shielded containers,
including whether the permit modification related to shielded containers should be amended,
suspended, or revoked.

MERITS

{7}     Appellants Southwest Research and Information Center (Southwest Research) and
Margaret Elizabeth Richards appeal a decision by NMED to modify the operating permit for
the Waste Isolation Pilot Plant (WIPP or the facility). The modification allows the addition
of a shielded container to the facility that, in turn, will allow remote-handled waste to be
managed within WIPP under the protocols applicable to contact-handled waste. At issue is
whether the permit modification request complied with the applicable regulations and
whether NMED appropriately approved the modification under Class 2 procedures that do
not require a public hearing, rather than Class 3 procedures that do require a public hearing.
We affirm NMED’s decision.

BACKGROUND

General Information Regarding WIPP and the Permit

{8}     WIPP is an underground repository for defense-related transuranic radioactive waste
(waste) near Carlsbad, New Mexico. WIPP was constructed and opened pursuant to the
Waste Isolation Pilot Plant Land Withdrawal Act of 1991, Pub. L. No. 102-579, 106 Stat.
4777 (1992), as amended by Pub. L. No. 104-201, 110 Stat. 2422 (1996). WIPP is federally
owned and is operated by DOE and a private contractor, Nuclear Waste Partnership LLC
(collectively, the Permittees), pursuant to a permit issued in 1999, and modified in 2006, by
the Secretary of NMED.

{9}     The permit is governed by the New Mexico Hazardous Waste Act, NMSA 1978,
§§ 74-4-1 to -14 (1977, as amended through 2010), and the New Mexico Hazardous Waste
Management Regulations. See § 74-4-3(D), (F) (stating that, in the context of the Hazardous
Waste Act, “director” and “secretary” are synonyms meaning the secretary of NMED and
“division” or “department” means NMED); see also NMSA 1978, § 74-1-8(A)(13) (2000)
(stating that the Environmental Improvement Board shall adopt rules applicable to the
management of hazardous waste); § 74-4-4(A) (same); 20.4.1.1 to .3 NMAC (6/14/2000)
(stating that the hazardous waste management regulations applicable to the storage of
hazardous waste were adopted by the Environmental Improvement Board pursuant to the
Board’s statutory authority). Throughout this Opinion, we refer to the actions of the director
or the secretary as those of NMED. The Hazardous Waste Act comports with its federal
analog, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 to 6992k (2006),
and therefore, NMED is authorized to administer and enforce the state hazardous waste


                                              4
management program under the Hazardous Waste Act in lieu of a federal program.1

{10} Two categories of waste are stored at WIPP: contact-handled and remote-handled.
Contact-handled waste is that with a surface dose rate not greater than 200 millirems per
hour, which can be handled manually without personnel protective equipment. See Pub. L.
No. 102-579, § 2(3), 106 Stat. at 4777 (defining contact-handled waste). WIPP was
permitted to and began receiving contact-handled waste in 1999. Remote-handled waste is
that with a surface dose rate of 200 millirems per hour or greater, which must be handled
remotely using machines. See Pub. L. No. 102-579, § 2(12), 106 Stat. at 4778 (defining
remote-handled waste). WIPP was permitted to receive remote-handled waste in 2006 and
began receiving it in 2007. Contact-handled waste is placed on the floor of the underground
disposal rooms, otherwise known as “panels,” and remote-handled waste is placed in
boreholes in the walls of the panels.

{11} The permit limits the total amount of contact-handled and remote-handled waste that
can be disposed of at WIPP to 148,500 cubic meters of contact-handled waste and 2,635
cubic meters of remote-handled waste. The permit also limits the amount of each type of
waste that can be placed in WIPP’s eight respective panels.

{12} In March 2011, the United States Environmental Protection Agency (the EPA)
announced its decision to approve DOE’s request to place a portion of its remote-handled
waste in specially designed shielded containers on the floor of the disposal rooms at WIPP
rather than in the boreholes. By its letter, the EPA explained that once remote-handled waste
was properly loaded into the shielded containers, it may be treated as contact-handled waste.
The EPA explained that DOE’s request to use the shielded containers was intended to
“enhance the efficiency of facility operations[.]” The EPA’s letter acknowledged, however,
that DOE would “separately need a hazardous waste permit modification from [NMED]” in
order to implement its proposed use of the shielded containers at WIPP.

Permit Modification Requests

{13} Permittees may submit permit modification requests to NMED, and the secretary is
charged with issuing a decision thereupon. See § 74-4-4.2(D), (G)(2) (stating that “a permit


       1
        See Authorized State hazardous waste programs, 42 U.S.C. § 6926(b) (2006)
(authorizing a state to carry out a hazardous waste program in lieu of a federal program
provided that, among other things, the state program is equivalent to the federal program);
New Mexico; Decision on Final Authorization of State Hazardous Waste Management
Program, 50 Fed. Reg. 1515-01, 1515 (Jan. 11, 1985) (granting New Mexico final
authorization to operate its hazardous waste management program); State of New Mexico:
Final Authorization of State Hazardous Waste Management Program, 55 Fed. Reg. 28,397-
01, 28,397 (July 11, 1990) (granting New Mexico final authorization to regulate the mixed
waste component).

                                             5
may be modified at the request of the permittee” and that decision is within the purview of
the secretary). Depending on the nature of the intended modification, the modification
request will be classified as Class 1, Class 2, or Class 3. See Permit modification at the
request of the permittee, 40 C.F.R. § 270.42 (2013); 20.4.1.900 NMAC (3/1/2009) (adopting
40 C.F.R Part 270); 20.4.1.901(B)(1) NMAC (3/1/2009) (stating that the secretary may
modify a permit pursuant to 40 C.F.R. Part 270). Each class of modification is subject to a
specific set of procedures. Class 1 modifications include “routine changes, such as changing
typographical errors, upgrading plans and records maintained by the facility, or replacing
equipment with functionally equivalent equipment.” Permit Modifications for Hazardous
Waste Management Facilities, 53 Fed. Reg. 37,912-01, 37,913 (Sept. 28, 1988). “Class 2
modifications address common or frequently occurring changes needed to maintain a
facility’s capability to manage wastes safely or to conform with new regulatory
requirements.” Id. “Class 3 modifications cover major changes that substantially alter the
facility or its operations.” Id. Class 1 and Class 2 modifications are considered “minor
permit modifications[.]” 20.4.1.901(B)(6) NMAC. Class 2 and Class 3 modification
procedures are relevant to this appeal.

{14} Class 2 modifications and Class 3 modifications have similar initial requirements.
See 40 C.F.R. § 270.42(b), (c). They both require the permittee to submit a modification
request describing the exact change to be made to the permit conditions, identifying the class
of the requested modification, explaining why the modification is needed, and providing
other materials required by regulations. See 40 C.F.R. § 270.42(b)(1), (c)(1). Likewise,
among other things, they each require the permittee to give public notice of the modification
request that includes the announcement of a sixty-day comment period and announcement
of the date, time, and place for a public meeting to be held within the comment period and
in the vicinity of the permitted facility. See 40 C.F.R. § 270.42(b)(2)-(5), (c)(2)-(5).

{15} Within ninety days of a Class 2 request, NMED must take one of five actions on the
modification request, that is, NMED, in relevant part, may (1) approve the request (with or
without changes), (2) deny the request, or (3) determine that the request must follow the
procedures for a Class 3 modification request. 40 C.F.R. § 270.42(b)(6)(i)(A)-(C). The
regulations enumerate the following bases upon which NMED may deny or change the terms
of a Class 2 permit modification request: (1) “[t]he modification request is incomplete[,]”
(2) “[t]he requested modification does not comply with the appropriate . . . requirements[,]”
or (3) “[t]he conditions of the modification fail to protect human health and the
environment.” 40 C.F.R. § 270.42(b)(7). Likewise, the regulations enumerate the following
bases upon which NMED may determine that the Class 2 modification request must follow
Class 3 procedures: “(1) [t]here is significant public concern about the proposed
modification; or (2) [t]he complex nature of the change requires the more extensive
procedures of Class 3.” 40 C.F.R. § 270.42(b)(6)(i)(C). In making a decision as to a Class
2 modification request, NMED is required to “consider all written comments submitted to
[NMED] during the public comment period and must respond in writing to all significant
comments in [the] decision.” 40 C.F.R. § 270.42(b)(6)(vi).


                                              6
{16} Unlike Class 2 circumstances, in a Class 3 modification request, NMED must give
notice and opportunity for a public hearing. See § 74-4-4.2(H) (stating that NMED may not
rule upon a major modification request without an opportunity for a public hearing);
20.4.1.901(F) NMAC (governing public hearings). A public hearing is an adversarial
proceeding held before a hearing officer. See 20.4.1.901(F) NMAC. The public hearing
must be held within the sixty-day comment period. See 40 C.F.R. § 270.42(c)(4); Public
hearings, 40 C.F.R. § 124.12(c) (2000). “After the conclusion of the [sixty]-day comment
period, [NMED] must grant or deny the permit modification request according to the permit
modification procedures of 40 C.F.R. Part 124[.]” 40 C.F.R. § 270.42(c)(6). Additionally,
in a Class 3 modification request, NMED must “consider and respond to all significant
written comments received during the [sixty]-day comment period.” Id.

The September 2011 Modification Request

{17} On September 29, 2011, the Permittees submitted a Class 2 permit modification
request to NMED seeking to implement use of the shielded containers at WIPP. In an
overview of the modification request, the Permittees described the requested change, in
relevant part, as one to add “a new gamma shielded container for managing remote-handled
. . . waste as contact[-]handled . . . waste since it meets the surface dose rate of [contact-
handled] . . . waste[.]” In response to the permit modification request, Southwest Research
and a number of members of the public responded by sending letters to NMED expressing
concern about the proposed use of shielded containers and requesting that the modification
be considered a Class 3 modification request instead of a Class 2 modification request.

{18} By a December 22, 2011, letter, NMED notified the Permittees that it was
“appropriate for [NMED] to process the modification request as a Class 3 permit
modification” because there was substantial public concern about the requested modification
and because the complex nature of the changes required the more extensive Class 3
procedures. But in a December 28, 2011, letter, NMED retracted the December 22, 2011,
letter and then, by a letter dated January 31, 2012, NMED issued a decision in which, among
other things, it denied the request to add provisions for shielded containers. The denial,
which will be discussed in greater detail as necessary later in this Opinion, was based
primarily on the deficiencies and “technical inadequacies” in the modification request.

The July 2012 Modification Request

{19} On July 5, 2012, the Permittees submitted a new Class 2 permit modification request
for the addition of the shielded containers. The modification request was subject to a sixty-
day public comment period that ran from July 12, 2012, through September 10, 2012. The
Permittees held public meetings on the proposed modification on August 14 and 16, 2012.
NMED received 206 comments from the public, including one from Southwest Research;
nearly all of the letters requested a public hearing. By a “final determination” letter dated
November 1, 2012, NMED approved, with changes not at issue in this appeal, the requested
Class 2 permit modification. This appeal followed.

                                              7
{20} Appellants raise eight points on appeal in support of two overarching arguments.
First, Appellants argue that, for a number of reasons, the permit modification request did not
comply with the applicable regulations, and therefore, it could not lawfully be granted by
NMED. Second, Appellants argue that approval was improper under Class 2 procedures and
should instead have been determined under Class 3 procedures. DOE intervened and argues
in support of NMED’s decision. We conclude that Appellants’ arguments provide no basis
for reversal and affirm NMED’s approval of the permit modification.

DISCUSSION

Standard of Review

{21} This Court may set aside the Secretary’s decision if it is arbitrary and capricious or
an abuse of discretion, not supported by substantial evidence, or otherwise not in accordance
with the law. Section 74-4-14(C). “The burden is on the parties challenging the agency
order to make this showing.” N.M. Attorney Gen. v. N.M. Pub. Regulation Comm’n, 2013-
NMSC-042, ¶ 9, 309 P.3d 89 (internal quotation marks and citation omitted). In seven of
their eight points, Appellants argue that the Secretary’s decision was arbitrary and
capricious. “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.” Gila
Res. Info. Project v. N.M. Water Quality Control Comm’n, 2005-NMCA-139, ¶ 16, 138
N.M. 625, 124 P.3d 1164 (internal quotation marks and citation omitted). In their final
point, Appellants argue that NMED abused its discretion. “An agency . . . abuses its
discretion when its decision is contrary to logic and reason.” Oil Transp. Co. v. N.M. State
Corp. Comm’n, 1990-NMSC-072, ¶ 25, 110 N.M. 568, 798 P.2d 169. The appellate courts
generally accord deference to an agency’s determination of a factual matter within its
specialized expertise and do not substitute judgment for that of the agency. Plains Elec.
Generation & Transmission Coop., Inc. v. N.M. Pub. Util. Comm’n, 1998-NMSC-038, ¶ 7,
126 N.M. 152, 967 P.2d 827.

I.     Appellants’ Arguments Regarding the Modification Request’s Compliance
       With the Applicable Regulations

{22} Appellants raise five points in support of their position that the modification request
did not meet the requirements of the applicable regulations. We consider each in turn and
conclude that none of the five points demonstrates a basis for reversal of NMED’s decision.

A.     The Need for the Proposed Modification

{23} Pursuant to 40 C.F.R. § 270.42(b)(1)(iii), a Class 2 modification request must explain
why the modification is needed. Although the Permittees provided a “need” statement in
their modification request, Appellants fault the Permittees for not having honestly stated the
need for the modification and fault NMED for not having determined or recognized for itself
what Appellants believe to be the unstated actual need that the modification serves. Because

                                              8
NMED granted the modification request notwithstanding the alleged deficiency in the need
statement, Appellants request reversal on the basis that NMED’s decision was arbitrary and
capricious.

{24} In their modification request, the Permittees identified three reasons for the need to
add shielded containers as acceptable waste containers at WIPP. Summarized, those reasons
were (1) the need to accommodate generator sites’ use of shielded containers, (2) to increase
the efficiency of the shipment of remote-handled waste, and (3) to increase the efficiency
with which remote-handled waste is managed, processed, and handled at WIPP. According
to the Permittees’ modification request, generator sites2 were turning to the use of shielded
containers because the containers were “expected to reduce the time and personnel necessary
for the packaging of” remote-handled waste at generator sites. Additionally, shipping
remote-handled waste in shielded containers would permit three times the amount of waste
per shipment than remote-handled waste in non-shielded containers. And, in terms of the
waste processing time, use of the shielded containers, which allow the remote-handled waste
to be handled as contact-handled waste, “is inherently less complex” than handling it as
remote-handled waste. Thus, for example, the Permittees explained that a pallet of shielded
containers “can be managed from unloading to disposal in about two hours versus the eight
to ten hours needed for” handling remote-handled waste in a non-shielded container. The
Permittees also stated that, in terms of the remote-handled waste disposal limits, the remote-
handled waste stored in the shielded containers would be characterized as, and count against,
the limits applicable to remote-handled waste. NMED argues that the Permittees’
explanation of the need to use shielded containers at WIPP, which was certified to be “true,
accurate, and complete,” constituted substantial evidence supporting the need for
modification.

{25} Appellants argue that, contrary to the reasons stated in the modification request, the
real and unstated reason that the Permittees needed the modification was to make up for their
earlier inefficient use of remote-handled storage capacity at WIPP. Appellants argue that
Permittees placed contact-handled waste in Panels 1 through 3 prior to their receipt of any
remote-handled waste, which resulted in a lost opportunity to place any remote-handled
waste in boreholes in those panels because remote-handled waste must be placed first. They
also argue that Permittees underused the borehole capacity in Panels 4 and 53. Because
shielded containers will allow placement of remote-handled waste on panel floors, the real
need to use them, according to Appellants, stems from the lost capacity to store remote-


       2
        Generator sites are places from which the waste originates; waste is originally placed
in containers at these sites.
       3
        Panel 4 has a maximum capacity for 356 cubic meters of remote-handled waste, but
has a final waste volume of 176 cubic meters of remote-handled waste. Panel 5 has a
maximum capacity for 445 cubic meters of remote-handled waste, but has a final waste
volume of 235 cubic meters of remote-handled waste.

                                              9
handled waste within the unused or underused boreholes of Panels 1 through 5.

{26} Appellants’ argument regarding an ulterior reason behind the Permittees’ need for
modifying the permit to allow the use of shielded containers is speculative and not clearly
supported by evidence in the record. At most, Appellants’ argument illustrates a possible
advantage the Permittees will gain from using the shielded containers, but we are not
persuaded that it illuminates an ulterior motive by the Permittees for the requested
modification. NMED determined that the Permittees’ statement of need was justified by the
reasons stated, substantiated by data, and constituted an “adequate statement” of the need.
And Appellants have not demonstrated otherwise. See N.M. Attorney Gen., 2013-NMSC-
042, ¶ 9 (stating that the appellant bears the burden of demonstrating reversible error in the
agency’s decision).

{27} Appellants also argue that the use of shielded containers could violate the panel
limits on remote-handled waste. Appellants tie this argument to a separate issue—whether
the use of shielded containers will allow the Permittees to exceed the permitted limit of
remote-handled waste that may be stored at WIPP. Appellants argue that NMED reverses
itself in stating that the remote-handled waste limits do not apply to remote-handled waste
in shielded containers because those containers constitute contact-handled waste. But
Appellants’ argument confuses NMED’s position regarding the limit of remote-handled
waste that WIPP may receive with its position regarding the management of remote-handled
waste in shielded containers by the Permittees.

{28} At the crux of this issue is the distinction between designating waste as remote-
handled or contact-handled for purposes of measuring the amount of waste stored at WIPP
versus the waste designation for purposes of managing the waste once it is at WIPP. On the
one hand is the limit of remote-handled waste that is permitted to be stored at WIPP. As
noted earlier in this Opinion, WIPP is permitted to receive a total of 2,635 cubic meters of
remote-handled waste. According to the modified permit, remote-handled waste that is
placed in shielded containers will count against the limited volume of remote-handled waste
that may be stored at WIPP. Thus, the record does not support Appellants’ view that the use
of shielded containers provides a loophole through which the Permittees can exceed the
overall permitted volume of remote-handled waste stored at WIPP.

{29} On the other hand is the management of waste within WIPP. Panels 4 through 8 are
designated to store a limited amount of remote-handled and contact-handled waste
respectively. For purposes of management and storage within the facility, the designation
of waste as remote-handled versus contact-handled is, under the permit and according to
federal regulation, determined by the amount of surface radiation or “surface dose rate.” See
Pub. L. No. 102-579, § 2(3), 106 Stat. at 4777 (defining contact-handled waste); Pub. L. No.
102-579, § 2(12), 106 Stat. at 4778 (defining remote-handled waste). Thus, remote-handled
waste within a shielded container with a surface dose rate not greater than 200 millirems per
hour can be managed by WIPP as contact-handled waste. See Pub. L. No. 102-579, § 2(3),
106 Stat. at 4777 (stating that contact-handled waste is that with a surface dose rate not

                                             10
greater than 200 millirems per hour). In effect, this allows the Permittees to store remote-
handled waste within shielded containers on the floors of the panels within the panel limits
applicable to contact-handled waste. As explained by NMED, in response to public
comments, the limits applicable to each panel will remain unchanged. To the extent that
Appellants view the modification request as reflecting an underlying “need” or intention to
modify or eliminate remote-handled waste limits, Appellants’ view is unsupported by the
record and, therefore, is unpersuasive.

{30} In sum, NMED concluded that the Permittees adequately stated the need for the
modification. And Appellants have not demonstrated that NMED’s conclusion in that regard
was arbitrary and capricious. See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (stating that
the appellant bears the burden of demonstrating reversible error in the agency’s decision);
Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (“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.” (internal quotation marks and citation omitted)). Therefore, this issue
provides no basis for reversal.

B.      Enforcement of the Surface Dose Rate Limits

{31} Appellants argue that the modification request was deficient in that it failed to show
how the critical surface dose rate limit for shielded containers would be maintained. On that
basis, Appellants argue NMED acted arbitrarily and capriciously under 40 C.F.R.
§ 270.42(b)(7)(iii) by approving a modification that fails to protect human health and the
environment. See id. (stating that “[NMED] may deny or change the terms of a Class 2
permit modification” if “[t]he conditions of the modification fail to protect human health and
the environment”); Titus v. City of Albuquerque, 2011-NMCA-038, ¶ 29, 149 N.M. 556, 252
P.3d 780 (recognizing that use of the term “may” evokes discretion). Further, Appellants
argue that NMED acted contrary to 40 C.F.R. § 270.42(b)(6)(vi) by failing “to explain its
reasoning in declining to protect against an admitted risk.” See id. (stating that “[NMED]
must consider all written comments submitted to [NMED] during the public comment period
and must respond in writing to all significant comments in [the] decision”).

{32} Appellants assert that the surface dose rate for shielded containers will, on average,
be much closer to the 200-millirems-per-hour limit for usual contact-handled waste drums
and that the prospect of contents shifting during shipment of the waste to WIPP creates a
“serious likelihood” that the shielded containers will exceed that limit. Appellants also
assert that the EPA and DOE “recognize that shifting is a serious risk.” In support of this
argument, Appellants cite a portion of a final draft report titled “Review of DOE Planned
Change Request for Shielded Containers for Remote-Handled . . . Waste.”

{33} The report, prepared for the EPA by an independent contractor, summarized the
contractor’s “technical review of the shielded container [planned change request].” The
report indicates that before the EPA would approve the use of shielded containers, the United
States Nuclear Regulatory Commission and the Department of Transportation must approve

                                              11
the shipping container design, and a safety analysis must be prepared by DOE. DOE was
allowed, pursuant to applicable regulations, to “self-certify that the shielded container [met]
the [applicable] requirements[.]” DOE demonstrated compliance with the requirements by
conducting a series of “analyses, tests, and evaluations performed on the shielded container
to demonstrate” that the packaging design met relevant requirements.

{34} Based on its review of DOE’s self-certification testing, the EPA submitted several
comments to DOE for clarification or resolution. The comments and responses were detailed
in the report prepared by the independent contractor. Appellants’ argument that the EPA and
DOE “recognize that shifting is a serious risk” is based upon one such comment by the EPA.

{35} In response to a representation by DOE regarding a test used to determine whether
significant changes in radiation would result depending on the weight of a particular
shipment, the EPA raised two questions. First, the EPA asked why, if DOE had determined
that radiation levels did not vary depending on the weight of the shipment, it did not
expressly so state. Second, the EPA asked that DOE show where it had addressed movement
of point sources of radiation and what actions would have to be taken to prevent such
movement. In response to the EPA’s comment, DOE stated, in relevant part, that “[i]t is the
responsibility of the shipper to ensure that there is adequate bracing within the . . . internal
payload container such that the point radiation source doesn’t move during transportation
to cause a significant increase . . . in the external radiation levels.” It further explained that
specific loading instructions were provided in a handling and operation manual, and the
instructions would be “revised to further instruct the shipper to securely fasten and position
contents . . . in a manner to prevent a significant increase in the level of radiation at the
external surface of the [shielded containers] as a result of movement during transport.”
Based on review of DOE’s “self-certification activities and responses to EPA comments,”
the independent contractor concluded that the relevant Department of Transportation
requirements were met.

{36} Subsequently, the EPA announced that it “propose[d] to allow the emplacement of
shielded container[s] . . . at WIPP, on the condition that, prior to shipping the shielded
containers to WIPP, DOE implement[ed] a consistent complex-wide procedure to ensure that
the shielded containers remain below the . . . 200 millirem[s] per hour dose limit for contact-
handled waste.” This condition was met, and the EPA gave its final approval on August 8,
2011.

{37} NMED responded to public comments regarding shifting by noting that the EPA’s
final approval of the use of shielded containers was contingent upon DOE addressing this
concern. NMED also explained that shifting was not a serious concern because DOE
“generator sites are subject to packaging requirements to minimize any shifting of wastes.”
Generator sites’ shipping requirements include standards requiring the use of specific
containers and measurement devices before the waste is placed within any container.
Further, NMED argues DOE and its contractors are responsible for adhering to federal
regulations applicable to the shipment of waste. Thus, NMED argues there are significant

                                               12
safeguards in place to minimize the risk of shifting.

{38} Appellants’ citation to the EPA’s questions of DOE does not show that the possibility
of waste shifting led to an abuse of discretion due to a serious risk to human health and the
environment that should have led NMED to deny the permit modification, and Appellants
do not cite further evidence or authority in support of that proposition. To the extent that the
EPA had questions regarding the possibility of waste shifting during transportation, its final
approval of DOE’s use of shielded containers indicates that the concern was adequately
addressed. We will not assume, without evidence to the contrary, that NMED abused its
discretion by not requiring safeguards over and above those applicable to DOE and its
contractors in regard to the transportation of shielded containers. In sum, we are unable to
conclude that NMED acted arbitrarily or capriciously under 40 C.F.R. § 270.42(b)(7)(iii).
See Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (stating the arbitrary and capricious
standard); Oil Transp. Co., 1990-NMSC-072, ¶ 25 (“An agency . . . abuses its discretion
when its decision is contrary to logic and reason.”). Therefore, Appellants’ argument in this
regard provides no basis for reversal.

C.      The Permitted Height of Stacked Containers

{39}     Appellants argue that NMED acted arbitrarily and capriciously under 40 C.F.R.
§ 270.42(b)(7)(iii) by not adequately restricting the stacking height of shielded containers.
See id. (granting NMED discretion to deny a modification request when the requested
modification“fail[s] to protect human health and the environment”). In support of their
argument, Appellants cite a phrase from the modification request in which the Permittees
stated that “[i]n order to meet the stacking stability requirements . . ., shielded containers will
not be stacked more than two high[.]” And they compare that statement with the modified
permit, which states, in relevant part, that “[c]ontainers will be stacked in the best manner
to provide stability for the stack (which is up to three containers high) and to make best use
of available space.” According to Appellants, the parenthetical statement allowing
containers to be stacked “up to three containers high” fails to protect human health and the
environment because it allows Permittees to stack the containers in an unstable formation.

{40} NMED and DOE respond that the permit’s requirement that the containers be stacked
in “the best manner to provide stability” prohibits unstable stacking. Thus, to the extent that
stacking the containers in a two-high stack is to provide the best stability, the Permittees are
required by the permit to stack the containers no more than two high. NMED argues further
that because “the modified permit expressly forbids the stacking of containers in an unstable
manner[,]” the alleged problem identified by Appellants is resolved by the language of the
modified permit.

{41} Appellants argue that this Court cannot rely on the foregoing explanation provided
by NMED because, in response to a public comment regarding the stacking concern, NMED
did not expressly state “that a general direction to stack containers ‘in the best manner’
adequately protects against” unstable stacking. Therefore, according to Appellants, this

                                                13
explanation cannot provide a basis for affirming NMED’s decision because it constitutes a
“post hoc rationalization” made for the first time on appeal in support of NMED’s decision.
See Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 11,
133 N.M. 97, 61 P.3d 806 (recognizing that “courts are not free to accept post hoc
rationalizations of counsel in support of agency decisions, because a reviewing court must
judge propriety of agency action solely on grounds invoked by [the] agency”). We do not
find this argument persuasive.

{42} The requirement that containers be stacked “in the best manner to provide stability”
is stated in the modified permit. The modified permit, including the at-issue stacking-
stability requirement, was before NMED when it issued its response to the public’s
comments. NMED’s failure to specifically raise the stacking-stability requirement in
response to public comment is not a bar to raising it now since the at-issue language was
obviously before NMED when the modified permit was approved, thereby providing a
ground on which NMED’s approval was based. Id. (recognizing that this Court must judge
an agency’s action on the grounds invoked by the agency). That NMED omitted the
stacking-stability requirement explanation from its response to the public comment does not
necessarily mean that the later expressed rationalization was post hoc.

{43} Based on the requirement in the modified permit that the containers must be stacked
in the best manner to provide stability, we cannot say that NMED’s approval of the modified
permit was arbitrary or capricious. NMED has broad discretion in interpreting the applicable
regulations, including 40 C.F.R. § 270.42(b)(7)(iii). See N.M. Attorney Gen., 2013-NMSC-
042, ¶ 10 (recognizing that deference is accorded to an agency’s interpretation of a
regulation that it is charged with administering). That NMED did not exercise its discretion
to deny the permit reflects its view that the requirement that the Permittees stack the
containers in “the best manner to provide stability” adequately protected human health and
the environment. We will not substitute our judgment for that of NMED in this regard.
Plains Elec. Generation & Transmission, 1998-NMSC-038, ¶ 7 (stating that the appellate
courts defer to the agency’s decision when reviewing decisions requiring expertise in highly
technical areas and that our judgment will not be substituted for that of the agency).

{44} Further, we note that in response to a public comment as to the inherent flexibility
in the modified permit, NMED emphasized that the up-to-three-high language will allow
“the Permittees to develop procedures to determine a stacking height as appropriate
depending upon certain containers or combination of containers.”

D.     Overpacking Procedures

{45} The term “overpacking” refers to the placement of a damaged container into a larger,
intact container to prevent waste from being released into the environment. The permit states
that “[s]hielded containers may be overpacked into standard waste box or ten drum
overpack.” Standard waste boxes and ten drum overpacks are types of containers meeting
certain regulatory and design specifications for the storage of waste.

                                             14
{46} The permit also enumerates the types of containers used for storing remote-handled
and contact-handled waste at WIPP. The permit states that contact-handled “waste
containers will be either [fifty-five-gallon] . . . drums singly or arranged into [seven]-packs,
[eighty-five-gallon] . . . drums singly or arranged into [four]-packs, 100-[gallon] . . . drums
singly or arranged into [three]-packs, ten drum overpacks . . ., standard large box 2s . . ., or
[standard waste boxes].” And it states that remote-handled “waste containers include RH
TRU Canisters, which are received at WIPP loaded singly in an RH-TRU 72-B cask,
shielded containers, which are received in HalfPACTs, and [fifty-five]-gallon drums, which
are received in a CNS 10-160B cask.”

{47} Based on the foregoing, Appellants argue that NMED arbitrarily and capriciously
authorized an unlawful practice by approving the modification request because standard
waste boxes and ten drum overpack containers that are “authorized only to receive [contact-
handled] waste” are “not authorized to contain [remote-handled] waste.” Thus, Appellants
argue, were a shielded container damaged in a manner that caused it to have a surface dose
rate greater than 200 millirems per hour, thus requiring it to be managed as remote-handled
waste, the modified permit “contains no lawful procedure to manage” it. Appellants state
that “[o]n its face, a [p]ermit provision requiring a damaged shielded container . . . to be
overpacked in a container authorized only to contain [contact-handled] waste fails to protect
health, safety[,] and the environment and is arbitrary and capricious.” (Emphasis omitted.)

{48} Appellants’ argument in this regard requires examination of two distinct overpacking
circumstances. The first is overpacking shielded containers that, although damaged, have
a surface dose rate of less than 200 millirems per hour. The second is how the Permittees
intend to handle a shielded container with damage that causes the container to have a surface
dose rate in excess of 200 millirems per hour. These contingencies were addressed
separately in the modification request.

{49}   In regard to the first contingency, the Permittees stated:

       In the unlikely event that shielded containers have surface contamination or
       container integrity issues which may require
       decontamination/repair/patch/overpacking, the Permittees may overpack the
       shielded container into a standard waste box or ten drum overpack. Because
       the surface dose rate is less than 200 [millirems per hour], this overpacking
       will occur in the [contact-handled b]ay . . . and not in the [remote-handled
       b]ay, consistent with overpacking other containers that are managed and
       stored as [contact-handled] . . . waste.

In regard to the second contingency, the Permittees stated:

       Even if the damage to the shielded container resulted in a breach of the
       shielding, it would still be handled in the [contact-handled b]ay in accordance
       with [the permit’s procedure applicable to control of spills or leaking or

                                              15
       punctured containers of contact-handled and remote-handled waste] . . . .
       Facility radiological control programs will dictate how a container breach
       will be mitigated and may include the use of supplemental shielding,
       overpacks, or other methods to manage radiological hazards beyond the
       scope of this [p]ermit.

{50} Thus, contrary to Appellants’ argument, the record in this case does not support the
conclusion that the Permittees intend to manage damaged shielded containers that meet the
definition of remote-handled waste by overpacking them within containers that are only
approved to hold contact-handled waste. Rather, the permit’s provision that “[s]hielded
containers may be overpacked into standard waste box or ten drum overpack” addresses the
manner in which the Permittees may handle damaged shielded containers that meet the
definition of contact-handled waste. Additionally, the permit provides that “[o]verpack
containers will be compatible with the hazards of the materials involved.” To the extent that
standard waste boxes or ten drum overpacks would not be compatible with the hazards of
a damaged shielded container that was classified as remote-handled waste, the permit
prohibits overpacking in that manner.

{51} Based on the foregoing, we conclude that the record contradicts Appellants’ assertion
that “[t]he permit clearly calls for placing [remote-handled] waste in [contact-handled]
containers[.]” Further, Appellants have not shown, by argument or authority, that the
Permittees’ plan to rely on radiological control programs to dictate how to mitigate a
container breach that causes the shielded containers to have surface dose rate higher than 200
millirems per hour is inadequate. Accordingly, we do not consider that issue in this appeal.
See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (recognizing that it is the appellant’s burden
to demonstrate that an agency’s decision should be reversed).

{52} In sum, based on our review of the record, we reject Appellants’ argument that
NMED authorized an unlawful overpacking practice. Having reviewed and considered all
of the relevant evidence in the record pertaining to the overpacking issue, we are unable to
conclude that NMED’s decision to grant the modified permit was arbitrary or capricious.
See Gila Res. Info. Project, 2005-NMCA-139, ¶ 16 (“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.” (internal quotation marks and citation omitted)).

E.     Breach of Shielded Containers

{53} Appellants’ final argument in regard to the adequacy of the modification request
concerns the possibility of a breach of the shielded containers. Before turning to Appellants’
argument, and to provide context for our analysis, we review the regulation upon which
Appellants’ argument is premised.

{54} Title 40 of the Code of Federal Regulations, Section 264.601 governs the
environmental performance standards applicable to miscellaneous units, including WIPP.

                                             16
See Environmental performance standards, 40 C.F.R. § 264.601 (2006); Definitions, 40
C.F.R. § 260.10 (2014) (“Miscellaneous unit means a hazardous waste management unit
where hazardous waste is treated, stored, or disposed of[.]”); 20.4.1.100 NMAC (3/1/2009)
(adopting 40 C.F.R. Part 260); 20.4.1.500 NMAC (3/1/2009) (adopting 40 C.F.R. Part 264).
Section 264.601 provides, in relevant part, that miscellaneous units “must be located,
designed, constructed, operated, maintained, and closed in a manner that will ensure
protection of human health and the environment.” It further provides that “[p]ermits for
miscellaneous units are to contain such terms and provisions as necessary to protect human
health and the environment, including, but not limited to . . . design and operating
requirements, detection and monitoring requirements, and requirements for responses to
releases of hazardous waste or hazardous constituents from the unit.” 40 C.F.R. § 264.601.
And it enumerates a number of factors to be considered in meeting the foregoing
requirements. 40 C.F.R. § 264.601(a)-(c). Section 264.601 in Title 40 of the Code of
Federal Regulations does not govern modification requests, which, as as discussed
throughout this Opinion, are governed by 40 C.F.R. § 270.42.

{55} Appellants argue that NMED’s decision arbitrarily and capriciously “disregarded”
the terms of 40 C.F.R. § 264.601, which, Appellants state, is the governing regulation.
Appellants further argue that NMED acted arbitrarily and capriciously by “revers[ing] itself
as to the need for evaluation of the impacts of the proposed modification under” 40 C.F.R.
§ 264.601. See 20.4.1.500 NMAC (adopting 40 C.F.R. Part 264). On these bases,
Appellants argue that NMED’s decision must be reversed.

{56} Pursuant to 40 C.F.R. § 270.42(b)(7)(ii), NMED “may deny or change the terms of
a Class 2 permit modification request” if “[t]he requested modification does not comply with
the appropriate requirements of 40 C.F.R. Part 264[.]” Thus, whether to deny a modification
request on the basis of lack of compliance with 40 C.F.R. § 264.601, is within NMED’s
discretion. As a factual basis underlying its argument that NMED’s action disregarded the
terms of 40 C.F.R. § 264.601, Appellants state that had NMED examined the issue of a
possible breach of shielded containers, the examination would have revealed the need “to
limit the quantity of [remote-handled] waste in shielded containers in areas where [remote-
handled] waste was previously barred.” Appellants also state that “regardless of the surface
dose rate, contents of a shielded container can be far more radioactive than [contact-handled]
waste and can have significant quantities of hazardous chemicals, creating significantly
larger risks in an accident.” Neither of the foregoing assertions of fact is supported by
citation to evidence in the record, therefore, they have no bearing on our analysis. See Muse
v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (stating that assertions of
counsel that are unsupported by the record provide no basis for review).

{57} As further factual support, Appellants point to Southwest Research’s public comment
that shielded containers “will likely have external dose rates that are more than an order-of-
magnitude greater than the [contact-handled] waste that is normally handled[,]” with which,
Appellants contend on appeal, NMED “did not disagree.” While NMED did not directly
rebuke this comment, it responded by reiterating that:

                                             17
       [o]nce the waste is placed in the shielded container and the surface dose rate
       is no greater than 200 millirem[s] per hour, the waste is then handled as
       [contact-handled] waste. The permit specifies management of waste in the
       [contact-handled] waste related areas if the containers in those areas can be
       managed as [contact-handled] waste.

We read NMED’s response to state that even assuming the likelihood that the shielded
containers will have higher external dose rates than contact-handled waste, it may be
managed safely within the contact-handled waste areas under the permit’s protocol provided
that its surface dose rate does not exceed 200 millirems per hour.

{58} Appellants do not, by argument or evidence in the record, demonstrate that higher
external dose rates that they contend are “likely” to be associated with the shielded
containers required examination of a possible breach and the consequences thereof of the
shielded containers. Nor, in their reply brief do Appellants respond to NMED’s arguments
regarding the “[i]nnumerable measures to protect public health and the environment,
including provisions specifically written to protect public health and the environment from
hazards associated with remote-handled . . . waste.” See Delta Automatic Sys., Inc. v.
Bingham, 1999-NMCA-029, ¶ 31, 126 N.M. 717, 974 P.2d 1174 (explaining that failure to
respond in a reply brief to arguments raised in an answer brief constitutes a concession of
the matter). Among those measures are overpacking shielded containers, as discussed earlier
in this Opinion, installation of “[o]ne or more filter vents” in the “shielded container lid to
prevent the escape of radioactive particulates and to prevent internal pressurization”; specific
protocols applicable to the management, storage, and placement of the shielded containers,
and security and radiological checks and shipping documentation reviews of the shielded
containers that arrive at WIPP. Having reviewed NMED’s citations to evidence in the record
pertaining to these safety measures, and having not been presented with argument or
evidence in the record demonstrating that they were inadequate, we cannot conclude that
NMED abused its discretion by not denying the permit pursuant to 40 C.F.R.
§ 270.42(b)(7)(ii). See Oil Transp. Co., 1990-NMSC-072, ¶ 25 (stating that an agency’s
action that is “contrary to logic and reason” constitutes an abuse of discretion).

{59} Nor are we persuaded by Appellants’ argument that NMED improperly reversed its
position when it failed to require an evaluation of the impacts of the proposed modification
under 40 C.F.R. § 264.601. Appellants’ argument in this regard is premised on the history
of the administrative proceedings applicable to the September 29, 2011, modification
request, which, although it is not at issue in this appeal, is discussed in the background
section of this Opinion to provide a historical overview of the proceedings.4 Appellants
point to NMED’s December 22, 2011, letter in which NMED informed the Permittees that


       4
         As stated in the background section of this Opinion, the present appeal concerns
NMED’s approval of a subsequent modification request that was filed by the Permittees on
July 5, 2012.

                                              18
their September 29, 2011, modification request would be processed as a Class 3 permit
modification.

{60} In the December 22, 2011, letter, NMED stated, in relevant part, that “[t]he requested
modification would require complex changes to the operation of the facility. . . . [For]
example, [NMED] will need to evaluate whether the proposed modification complies with
40 C.F.R § 264.601(c)(6), which addresses the potential for health risks caused by human
exposure to waste constituents.” Six days later, NMED retracted the December 22 letter.
Subsequently, on January 31, 2012, NMED issued its final decision as to the September 29,
2011, modification request, denying the permit modification request to add provisions for
shielded containers. The January 31, 2012, letter did not refer to 40 C.F.R. § 264.601 as a
basis for its denial. Rather, NMED’s denial was based on “technical inadequacies” that
could not be corrected by NMED and approved with changes because NMED lacked
sufficient information to make the required changes.

{61} Appellants cite federal and state case law for the proposition that it is arbitrary and
capricious for an agency to change course without explanation, or treat one case differently
from another case with similar facts. See, e.g., Motor Vehicle Mfrs. Ass’n of United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-47 (1983) (holding that a federal
agency’s rescission of part of a federal regulation was arbitrary and capricious where the
agency failed to present an adequate basis and explanation for the rescission); Sais v. N.M.
Dep’t of Corr., 2012-NMSC-009, ¶ 17, 275 P.3d 104 (holding that “[a] worker’s termination
may be arbitrary and capricious if one employee is treated differently compared with others
who are similarly situated and no rational explanation is offered for the difference”). Based
on that proposition, Appellants argue that NMED’s approval of the modification request in
this case without having evaluated whether the proposed modification complies with 40
C.F.R § 264.601(c)(6), in keeping with the December 22, 2011, letter, rendered NMED’s
decision arbitrary and capricious because NMED “reversed its position on a fundamental
issue without explaining its reasons.”

{62} We do not share Appellants’ view that NMED’s December 22, 2011, letter, which
was rescinded six days after it was issued, and replaced with a letter that did not rely on 40
C.F.R. § 264.601, may be viewed as reflecting NMED’s “position on a fundamental issue.”
At best, the rescinded letter can be said to have reflected NMED’s view of the September
29, 2011, modification request which, although it sought to introduce shielded containers to
WIPP, suffered from technical inadequacies and insufficient information. As indicated by
NMED’s approval of the July 5, 2012, modification request, the later request did not reflect
the same deficiencies. As such, we cannot conclude that NMED acted arbitrarily and
capriciously by treating the respective modification requests differently. See Sais, 2012-
NMSC-009, ¶¶ 17, 21, 27 (stating that where there is a “meaningful distinction between” the
differently decided cases, disparate treatment of them does not constitute an abuse of
discretion). In the absence of evidence to the contrary, we conclude that the information
contained in the second modification request satisfied the requirements of 40 C.F.R. §
264.601, thus alleviating the need for NMED, in its discretion, to deny the modification

                                             19
request pursuant to that regulation. See 40 C.F.R. § 270.42(b)(7)(ii) (stating that NMED
“may deny or change the terms of a Class 2 permit modification request” if “[t]he requested
modification does not comply with the appropriate requirements of 40 C.F.R. Part 264”);
Plains Elec. Generation & Transmission, 1998-NMSC-038, ¶ 7 (stating that the reviewing
court defers to the agency’s decisions when reviewing decisions requiring expertise in highly
technical areas and will not substitute our judgment for that of the agency).

II.    Appellants’ Arguments Regarding the Need for Class 3 Instead of Class 2
       Proceedings

{63} In their remaining arguments, Appellants raise three points, in each of which
Appellants urge reversal of NMED’s decision that was rendered pursuant to Class 2
procedures and a remand of this case for Class 3 proceedings. We consider each of
Appellants’ three points in turn. And we conclude that none provides a basis for reversal.

A.     Storage Capacity

{64} Appellants’ first argument regarding the need for Class 3 instead of Class 2
proceedings stems from the regulatory requirement that a modification request that will
result “in greater than [a twenty-five percent] increase in the facility’s container storage
capacity” requires Class 3 proceedings. See 40 C.F.R. app. § 270.42(F)(1)(a) (2008)
(Classification of Permit Modification). Appellants argue that the modification request
increases WIPP’s storage capacity for remote-handled waste by allowing the waste to be
stored in areas that were previously limited to the storage of contact-handled waste. Thus,
according to Appellants, NMED’s decision was arbitrary and capricious because it
disregarded the terms of “the governing regulation.” See § 74-4-14(A), (C)(3) (stating that
we may reverse NMED’s decision if it is “not in accordance with law”). Appellants’
argument is not supported by the applicable regulation or by evidence in the record.

{65} The applicable regulation requires Class 3 proceedings under circumstances in which
the facility’s “container storage capacity” will be increased by more than twenty-five
percent. 40 C.F.R. app. § 270.42(F)(1)(a). On its face, 40 C.F.R. app. § 270.42(F)(1)(a)
does not distinguish between the capacity of a facility to store remote-handled waste versus
contact-handled waste, and Appellants provide no authority to support reading such a
distinction into the regulation. Appellants do not point to any evidence in the record
indicating that, owing to the use of shielded containers, WIPP will have any increase in
storage capacity, much less a twenty-five percent or greater increase, nor have we found any
evidence in the record to support such a conclusion. As such, Appellants have not
demonstrated that NMED acted arbitrarily or capriciously or that it improperly disregarded
40 C.F.R. app. § 270.42(F)(1)(a).

{66} Furthermore, to be clear, the volume of the shielded containers counts toward the
limit of remote-handled waste that may be shipped to and stored within WIPP. In terms of
WIPP’s ability to manage its limited volume of remote-handled waste, the shielded

                                             20
containers have the effect of increasing the areas of WIPP where remote-handled waste can
be stored. That is, rather than storing the remote-handled waste exclusively within the panel
boreholes, the Permittees may, under the modified permit, store remote-handled waste in
shielded containers on the panel floors. Yet, there is no evidence in the record to support a
view that the Permittees’ ability to use the space differently will increase WIPP’s storage
capacity by more than twenty-five percent. Without evidence to support it, Appellants’
argument in this regard provides no basis for reversal.

B.      Waste Management Practices

{67} Appellants argue that Class 3 procedures were required because the use of shielded
containers constitutes “[s]torage of different wastes in containers . . . [t]hat require additional
or different management practices from those authorized in the permit[.]” 40 C.F.R. app.
§ 270.42(F)(3)(a); see 20.4.1.900 NMAC (adopting 40 C.F.R. Part 270). Appellants argue
that NMED arbitrarily and capriciously disregarded the terms of the federal regulation by
authorizing the use of shielded containers under a Class 2 modification. Additionally,
relying on NMED’s January 31, 2012, denial letter, Appellants argue that NMED acted
arbitrarily or capriciously by changing its position on the issue whether, pursuant to 40
C.F.R. app. § 270.42(F)(3)(a), Class 3 procedures were required to modify the permit to
allow the use of shielded containers at WIPP.

{68} The term “different wastes” as used in 40 C.F.R. app. § 270.42(F)(3)(a) refers to a
circumstance in which “the facility may be seeking to accept wastes that were not previously
identified in the permit, or it may already be managing the waste but would prefer to shift
it to a different treatment, storage, or disposal process.” 53 Fed. Reg. at 37,927. Permit
modifications to allow different wastes follow either Class 2 or Class 3 procedures. Id.

{69} Class 2 procedures apply in circumstances in which the “different wastes . . . are
sufficiently similar to wastes currently authorized at the unit so that no additional or different
management practice, design, or process is required.” Id. For “example, a unit may be
permitted only to treat specific solvent wastes, but may be equally capable of treating other
solvent wastes that exhibit similar physical and chemical properties within the same
management conditions of the permit.” Id. Class 3 procedures apply in circumstances in
which “the introduction of a different waste . . . will require different or additional
management practices, design, or processes to properly manage the waste—for instance, if
the waste is reactive or ignitable—and the permit . . . does not anticipate that such wastes
will be managed in the unit.” Id. In the context of WIPP, the term “unit” means the eight
underground disposal units referred to throughout this Opinion and in the permit as “panels.”

{70} Appellants argue that Class 3 procedures were required because the Permittees stated
in their modification request that “[t]he shielded container will contain hazardous waste
already approved for disposal at the WIPP facility; however, that waste ([remote-handled
waste]) is approved for management in the [remote-handled c]omplex and not in the
[contact-handled b]ay, and therefore, . . . it is a different waste in a particular unit.”

                                                21
Appellants characterize the foregoing as a concession by the Permittees that Class 3
procedures were required; however, the Permittees’ acknowledgment of the fact that the
modification includes “different waste in a particular unit” is not dispositive. As indicated,
in the preceding paragraph, “different waste” may lead to Class 2 or Class 3 procedures; the
determining factor is whether “additional or different management practices from those
authorized in the permit” are required. See 40 C.F.R. app. § 270.42(F)(3). Following the
“different waste” statement, the modification request continued, providing the following
relevant explanation of why Class 2 procedures were applicable here.

        In this modification, the Permittees are proposing to manage hazardous waste
        that is defined as [remote-handled] waste by the generator in the [contact-
        handled] waste management areas by using the shielded container. Because
        [the remote-handled] waste has not been managed and stored in the [contact-
        handled] portion of the facility, the Permittees consider this Class 2 [permit
        modification request] as the appropriate modification request to authorize
        this activity. Since modification of the facility is not needed, and the
        imposition of different waste management practices is not needed, this
        modification is not classified as a Class 3 [p]ermit [m]odification. This is
        because the management of [remote-handled] waste in shielded containers
        can be done using existing [contact-handled] waste practices in the [contact-
        handled] portion of the facility.

{71} Appellants argue that, contrary to the Permittees’ statement, different management
practices are, in fact, required with the addition of shielded containers. Appellants identify
what they believe to be six management practices that are different from those in the permit:
 (1) “[t]he shielded container itself is ‘a new payload container’ with layers of lead and steel,
weighing nearly a ton”; (2) “[m]anagement of [remote-handled] waste in shielded containers
requires shielded-container-specific ‘packaging requirements to minimize shifting’ ”;
(3) “[t]he [three]-pack package contains numerous elements not used in shipping [contact-
handled] waste and is managed differently from [contact-handled] waste shipments”;
(4) “[i]n [the] event of contamination or release from a shielded container, the [three]-pack
must be disassembled for overpacking”; (5) “[a] still-unknown, but shielded-container-
specific, overpacking method must contain the intense radiation from [remote-handled]
waste”; and (6) “[a] still-unknown, but shielded-container-specific, stacking system will be
used in [placing] shielded containers in the underground.” Appellants’ fifth and sixth points
are not accompanied by authority, evidence, or citations to the record proper and will not be
considered.

{72} Appellants’ first through fourth management-practices points are not supported by
the record. As to Appellants’ first point, we do not believe, and Appellants do not show by
argument, authority, or evidence in the record, how their recitation of the shielded
containers’ weight and composition may be considered a “management practice” or
otherwise requires a new management practice. Concerning Appellants’ second point, that
shielded containers are subject to particular packaging requirements, Appellants provide no

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record support for their view that this affects management practices or requires new
management practices at WIPP. To the contrary, the record reflects that the shielded-
container-specific packaging requirements govern the generator sites where the packaging
will occur. As to Appellants’ third point, contrary to their argument that the shielded
containers must be managed differently from contact-handled waste, the record reflects that
shielded containers do not need to be managed differently from contact-handled waste;
rather, they may be managed using contact-handled waste equipment and operating
procedures. Finally, as to Appellants’ fourth point, NMED argues and the record reflects
that the modification request does not require a new management practice; rather, it provides
that a damaged shielded container may be managed according to the existing permit
requirements.

{73} In sum, Appellants’ argument in regard to the different management practices is not
supported by the record. Because Appellants have not shown by argument or evidence in
the record that NMED contravened 40 C.F.R. app. § 270.42(F)(3) in approving the
modification request, we cannot say that NMED’s decision was arbitrary or capricious. See
N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (recognizing that it is the appellant’s burden to
demonstrate that an agency’s decision should be reversed); Gila Res. Info. Project, 2005-
NMCA-139, ¶ 16 (“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.” (internal
quotation marks and citation omitted)).

{74} Nor are we persuaded by Appellants’ argument that, in light of NMED’s January 31,
2012, denial letter, we should conclude that NMED acted arbitrarily or capriciously by
changing its position on the issue whether, pursuant to 40 C.F.R. app. § 270.42(F)(3)(a),
Class 3 procedures were required in this case. In contrast to the September 29, 2011,
modification request that provided a sparse and conclusory statement as to why the
modification request should follow Class 2 procedures, in their July 5, 2012, modification
request the Permittees provided two full pages explaining why the modification request
required Class 2 procedures. Among other things, as indicated earlier, the Permittees
addressed the issue whether different waste management practices were required, concluding
that they were not. Appellants have not demonstrated that NMED erred in agreeing with the
Permittees in this regard. See N.M. Attorney Gen., 2013-NMSC-042, ¶ 9 (recognizing that
it is the appellant’s burden to demonstrate that an agency’s decision should be reversed).
Moreover, as we have noted, owing to the difference in the respective modification requests,
we do not believe that comparing NMED’s responses to them demonstrates that NMED
acted arbitrarily and capriciously. See Sais, 2012-NMSC-009, ¶¶ 17, 21, 27 (stating that
where there is a “meaningful distinction between” the differently decided cases, disparate
treatment of them does not constitute an abuse of discretion).

C.     Public Concern

{75} As indicated earlier in this Opinion, in making a decision as to a Class 2 modification
request, NMED is required to consider all written comments submitted to NMED during the

                                             23
public comment period and must respond in writing to all significant comments in the
decision. 40 C.F.R. § 270.42(b)(6)(vi). NMED points to the fact that of the 206 comments
that it received, 173 were pre-printed form letters containing “very little substance[,]” sixteen
were copies, or near copies, of the form letters, twelve “were similarly lacking in
substance[,]” and only two organizations, Southwest Research and Nuclear Watch New
Mexico, provided substantive comments. Thus, NMED argues, notwithstanding the volume
of letters it received, the substance of the public’s concern was fairly limited. NMED further
argues that it carefully considered the public comments it received and responded thereto in
writing, as evidenced by its explanatory written responses contained in the record. NMED
determined that in light of the fact that it held public meetings on the modification request
and addressed the public comments in writing, a public hearing was not required.

{76} Appellants argue that NMED abused its discretion by failing to require Class 3
procedures pursuant to 40 C.F.R. § 270.42(b)(6)(i)(C)(1), which provides that “significant
public concern about the proposed modification” is a basis upon which NMED may
determine that the modification must follow Class 3 procedures. Appellants’ argument in
this regard is supported exclusively by the number of letters sent to NMED during the
comment period. Appellants argue that in NMED’s December 22, 2011, letter pertaining
to the September 29, 2011, modification request, NMED stated that “more than [eighty]
public comments indicated substantial public concern, requiring Class 3 procedures[.]”
Whereas, Appellants contend, in this case, where “200 citizens express[ed] the need for a
public hearing” as to the July 5, 2012, modification request, NMED, acting contrary to logic
and reason, found “a lack of public concern[.]”

{77} In regard to this argument, as in regard to others that we have already discussed, we
do not find Appellants’ reliance on NMED’s December 22, 2011, letter that did not pertain
to the present modification request and that was retracted six days after it was issued,
persuasive. In NMED’s January 31, 2012, final decision on the matter of the September 29,
2011, modification request, technical inadequacies, rather than public concern over the use
of shielded containers or the need for a public hearing, was the basis for denying the
modification request. Furthermore, without evidence to the contrary, we assume that the
public’s concern, like that of NMED, reflected the technical and informational inadequacies
of the September 29, 2011 modification request. We do not conclude that the views
expressed in NMED’s later-retracted December 22, 2011, letter, which was written in
response to a technically inadequate modification request, is informative or persuasive in
regard to NMED’s decision in regard to the present modification request.

{78} Although we recognize that issues surrounding WIPP and modifications to the permit
are of general public interest and concern owing to the health and environmental
implications of waste storage within our state, Appellants have not demonstrated that NMED
abused its discretion by acting contrary to or ignoring the public interest and concern in
processing the modification request under Class 2 procedures. Short of a generalized
reiteration of the issues raised throughout their briefs, and addressed earlier in this Opinion,
Appellants do not demonstrate that NMED failed to adequately address the public’s specific

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concerns here by NMED’s written responses to the public comments. N.M. Attorney Gen.,
2013-NMSC-042, ¶ 9 (recognizing that it is the appellant’s burden to demonstrate that an
agency’s decision should be reversed). Nor do Appellants demonstrate, by argument,
evidence, or authority, what could have or should have been raised and addressed in a public
hearing that was not addressed in NMED’s written responses to the public’s comments. See
Sw. Research & Info. Ctr. v. N.M. Env’t Dep’t, 2003-NMCA-012, ¶ 39, 133 N.M. 179, 62
P.3d 270 (recognizing that “there is great public interest in the WIPP facility in general” but
holding that this “does not mean that there must be a hearing for every administrative detail
concerning the facility”). Under the circumstances of this case, we are unable to conclude
on the issue of public concern that NMED abused its discretion by declining to process the
modification request under Class 3 rather than Class 2 procedures. See Oil Transp. Co.,
1990-NMSC-072, ¶ 25 (stating the abuse of discretion standard).

CONCLUSION

{79} Based on our review of the record in this case, we are not persuaded that NMED
erred in approving the July 5, 2012, modification request to permit the addition of shielded
containers at WIPP. We affirm NMED’s approval of the permit modification.

{80}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

_______________________________
JAMES J. WECHSLER, Judge

_______________________________
LINDA M. VANZI, Judge




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