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Appeals court says hearing was required for LANL permit

SANTA FE — The New Mexico Court of Appeals ruled this week that state agencies wrongfully denied — repeatedly — requests for a public hearing before a wastewater discharge permit was issued for Los Alamos National Laboratory in 2015.

The appeals court said the state Water Quality Control Commission acted “contrary to the evidence” and “arbitrarily and capriciously” when it sustained former state Environment Secretary Ryan Flynn’s denial of a public hearing requested by a coalition of environmental groups.

“We’re pleased that the court so strongly supported the critical role that public hearings play in forcing agencies and regulated entities to defend their actions and in creating a record that can be used to appeal a faulty permit decision,” said Douglas Meiklejohn, executive Director of the New Mexico Environmental Law Center, which represents Communities for Clean Water.

The coalition includes Concerned Citizens for Nuclear Safety, Amigos Bravos, Honor Our Pueblo Existence, the New Mexico Acequia Association, the Partnership for Earth Spirituality and Tewa Women United.

Spokesman Michael Jensen said the group now expects a public hearing — denied three times in the past — “as soon as possible,” although the permit has been in place for more than two years.

“We look forward to presenting our concerns about the land application of up to 350,000 gallons of ‘treated’ chromium water on the floodplains of Mortandad Canyon, requirements for soil sampling, and whether the annual submittal of work plans should be considered permit modification requests at a public hearing,” said Joni Arends, of Concerned Citizens, referring to LANL plans for remediating a chromium plume in the Los Alamos-area aquifer.

No comment was available from the New Mexico Environment Department. Flynn stepped down as NMED secretary last year.

During the discharge application process, Flynn decided, and the Water Quality Control Commission affirmed, that the concerns of the coalition failed to “rise to the level of substantial public interest,” a key factor in determining if a hearing was legally required.

But the appeals court decision written by Judge Julie J. Vargas noted that NMED officials did hold a private meeting with representation from the coalition that led to changes in the permit. The idea that the coalition’s concerns were “substantial enough to justify a private meeting among the parties and revisions to the draft permit but not enough to require a public hearing, is unpersuasive,” wrote Vargas.

She added that closed door meetings are “contrary to the legislative intent behind a statute that favors public participation in the permitting process.”

The opinion says the WQCC’s own argument that delaying a decision on the discharge permit could be harmful to the environment showed that “substantial public interest” was in fact involved, “mandating the hearing.”