A. Except as otherwise provided in the Water Quality Act, a person who is adversely affected by a regulation adopted by the commission or by a compliance order approved by the commission or who participated in a permitting action or appeal of a certification before the commission and who is adversely affected by such action may appeal to the court of appeals for further relief. All such appeals shall be upon the record made before the commission and shall be taken to the court of appeals within thirty days after the regulation, compliance order, permitting action or certification that is being appealed occurred. If an appeal of a regulation is made, then the date of the commission's action shall be the date of the filing of the regulation under the State Rules Act [Chapter 14, Article 4 NMSA 1978].
B. Upon appeal, the court of appeals shall set aside the commission's action only if it is found to be:
(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.
C. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted pending the outcome of the judicial review. The stay of the action may be granted by the commission or by the court of appeals if the commission denies a stay within ninety days after receipt of the application.
History: 1953 Comp., § 75-39-6, enacted by Laws 1967, ch. 190, § 6; 1970, ch. 64, § 4; 1993, ch. 291, § 7.
ANNOTATIONSThe 1993 amendment, effective June 18, 1993, substituted "Administrative action" for "Validity of Regulation" in the catchline; rewrote Subsection A; deleted former Subsection B, relating to the procedure for perfecting an appeal; redesignated former Subsection C as present Subsection B; in present Subsection B, substituted "commission's action" for "regulation", deleted "or reasonably related to the prevention or abatement of water pollution" following "the record" in Paragraph (2), and made a minor stylistic change; and added present Subsection C.
Appellant must show injury or a real risk of future injury. — Where petitioner appealed from the water quality control commission's designation of perennial waters within forest service wilderness areas as outstanding national resource waters; petitioner did not submit any data or examples to show that the cattle industry would suffer a negative economic effect as a result of the designation, because petitioner filed to show that it or its members were adversely affected by the designation and petitioner did not have a right to appeal. N.M. Cattle Growers' Assn. v. N.M. Water Quality Control Comm'n, 2013-NMCA-046, 299 P.3d 436, cert. granted, 2013-NMCERT-003.
Right to participate in appeal of administrative rule-making. — Persons who have participated in a legally significant manner in an administrative rule-making proceeding have the right to participate as parties to an appeal if they express such an intention. New Energy Econ., Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53.
Where petitioners in an administrative rule-making proceeding supported the adoption of new rules, presented the kind of evidence that directly informed the water quality control commission's decision on whether to adopt the new rules, submitted expert technical testimony and exhibits, and made legal and closing arguments in support of the new rules; under the statutes and rules governing the rule-making process of the WQCC, petitioners were considered to be "parties" to the proceedings and assumed roles that imposed additional responsibilities and preparation on them that were not imposed on participants; participants in the administrative proceedings appealed the adoption of the new rules; and the court of appeals denied petitioners the right to intervene as parties in the appeal, the court of appeals did not have the discretion to deny intervention for petitioners because the requirements imposed upon the petitioners as parties in the rule-making proceeding, the contributions they made, highlighted by their technical testimony, and the possible challenge to those contributions on appeal, afforded petitioners a right to defend their positions on appeal. New Energy Econ., Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53.
Written basis for decision not required. — Even though statute does not explicitly state that the commission must provide a written factual and legal basis for its decision, administrative agencies must provide written factual and legal basis for their decisions in order to permit an effectual and meaningful review. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2005-NMCA-139, 138 N.M. 625, 124 P.3d 1164, cert. denied, 2005-NMCERT-009, 138 N.M. 439, 120 P.3d 1182.
Limited appellate review. — Where all the commission provided was an unexplained conclusion of prejudice with no evidentiary support in the record and a conclusion of lack of prejudice based on an unexplained determination, the appellate court is hardly able to effectively and meaningfully review whether the commission's ultimate decision to dismiss was erroneous under the Subsection B of this section standard of review. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2005-NMCA-139, 138 N.M. 625, 124 P.3d 1164, cert. denied, 2005-NMCERT-009, 138 N.M. 439, 120 P.3d 1182.
Standard is rule, if the proper procedure has been followed in promulgating it. Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, 93 N.M. 546, 603 P.2d 285.
Standards adopted as rules are appealable. — Since the standards for the evaluation of waste water to determine whether it is contaminated were adopted as rules, they are appealable to the court of appeals. Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, 93 N.M. 546, 603 P.2d 285.
Lack of numerical standards not basis for invalidating regulation. — Although there are no numerical standards in a regulation for what concentration of compounds triggers the label "toxic pollutant," this is not detrimental to a discharger where the director of the environmental improvement division will make that determination before a discharge plan is approved or disapproved, and the discharger will be notified. The lack of numerical standards is, therefore, not a basis for finding the regulation unconstitutional. Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm'n, 1982-NMCA-015, 98 N.M. 240, 647 P.2d 873.
Stay from operation of order or regulation. — Implicit in this section is the power to grant a stay from the operation of an administrative order or regulation, after due notice and opportunity for hearing. Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1986-NMCA-033, 105 N.M. 708, 736 P.2d 986 (decided under prior law).
Evidence upon review. — The "whole record" standard of judicial review to findings of fact made by administrative agencies controls where the commission acts in its rule-making capacity. Therefor, such a review must include the record of all public meetings and public hearings. Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1987-NMCA-153, 107 N.M. 469, 760 P.2d 161.
The legal residuum rule, which requires support by some evidence that would be admissible in a jury trial, is not applicable in a judicial review of a rule-making proceeding. Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1987-NMCA-153, 107 N.M. 469, 760 P.2d 161.
Law reviews. — For comment, "Control of Industrial Water Pollution in New Mexico," see 9 Nat. Resources J. 653 (1969).
For note, "New Mexico Water Pollution Regulations and Standards Upheld," see 19 Nat. Resources J. 693 (1979).
For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control §§ 117, 678 et seq., 749, 878, 881, 1249, 1578 to 1581, 1719, 1721.
Validity and construction of anti-water pollution statutes and ordinances, 32 A.L.R.3d 215.
Pollution control: validity and construction of statutes, ordinances or regulations controlling discharge of industrial wastes into sewer system, 47 A.L.R.3d 1224.
39A C.J.S. Health and Environment § 146.