THE ALTO CEP’S FILING WITH THE NEW MEXICO COURT OF APPEALS

On July  20, 2023 the Attorney for the Alto CEP Tom Hnasko filed an “Appellant’s Docketing Statement” with the New Mexico Court of Appeals, regarding the deliberation and vote of the Environment Improvement Board (EIB) to overturn the Final Order of the Deputy Secretary of the Environment to deny the air quality permit for the proposed Alto Concrete Batch Plant (CBP).    The Deputy Secretary’s Final Order to deny the permit was the outcome of the February 2022 public hearing held by the New Mexico Environment Department (NMED) on the proposed CBP. 

 The intent of the appeal is to request that the appellate court remand the EIB’s “Final Order”, effectively invalidating NMED’s subsequent granting of the air quality permit for the proposed CBP. 

The basis of our appeal has both technical and legal components.  Our technical objections to the air quality permit application for the proposed CBP were presented during a 3 day hearing held by the EIB in October 2023.  To summarize the technical evidence and testimony we presented: 

• Incorrect emission factors were used in calculating the emissions from haul roads within the CBP
• Haul roads lengths were artificially reduced to improperly reduce the emissions to an acceptable level
• Emissions from “downwash structures” were omitted from the emission calculations submitted in the application, contrary to standard practice for emission modeling.  Had these emissions been included they would have very likely increased the total emissions from the proposed plant 
• The type of technology and water supply necessary to implement the proposed “wet dust suppression” emissions control system were never specified or established in the application 

In other words, the criteria for approval of the CBP as a “minor source” of emissions could only be met if the numbers were fudged, some contributing factors were overlooked, and with a lot of hand waiving. 

The EIB’s Hearing Officer’s report released in January 2023 reaffirmed the technical objections we raised regarding the air quality permit application for the CBP by stating:

“…the record does not appear to establish that the permit conditions are sufficient to meet the   applicable air quality standards…” 

and that,

“Alto’s evidence shows a major difference in modeling results when [the EPA standard emission factor for CBP haul roads] is applied to the modeling…”

further noting,

 “…the record does not show any defects in the methodology and accuracy of [Alto’s technical witnesses’} modeling results.”

 We are also appealing the nature by which the EIB “deliberated” the results of the October hearing, prior to taking it’s vote.  

To summarize our objections regarding what has become commonly known as the “EIB Clown Show”:   the readily apparent unpreparedness by the EIB during the deliberation reflected a complete lack of familiarity with the case.  We claim that the EIB’s conduct in their deliberation was so unreasonable that the due process rights for the Alto CEP were violated because:

• The EIB and its Attorney were unclear on which party was the plaintiff and which party was the petitioner, subsequently leading to significant confusion of who had the burden of proof  in the proceeding 
• In its deliberation, the EIB completely ignored the previously presented technical evidence noted in the above bullet points 
• The EIB permitted one of it’s member who did not attend the October hearing to vote on the outcome of the case 
• The EIB relied on the advice of a state appointed attorney who stated on the record that he had a limited knowledge of environmental law

The bottom line is:  We twice presented a solid case based on unchallenged technical evidence that the proposed CBP would not meet the required emission levels when all appropriate standards and factors are considered.   The Deputy Secretary of the Environment and the Hearing Officer in the EIB hearing agreed with our conclusion.  The “EIB Clown Show” rejected our conclusion.

A ruling from the Court of Appeals, which consists of three randomly appointed state judges, will take some time.  We are told that appellate court rulings normally take six months or more. 

Our complete “Appellate Docking Statement” can be read here.  You can read the complete Hearing Officer’s Report from the October 2022 EIB hearing at this link.  Video of “EIB Clown Show” (officially known as the EIB March 2023 Public Meeting) can be viewed on NMED’s YouTube Channel here.  The EIB Final Order is available on the NMED website.  The Deputy Secretary’s Final Order providing the June 2022 denial of the air quality permit for the CBP can be read here.  The Hearing Officer’s report from February 2022 NMED public hearing which led to the Deputy Secretary’s Final Order can be read here. 

We will provide updates on our case in the New Mexico Court of Appeals when they become available.