(dissenting).
I dissent.
While I agree with most of the majority opinion, in my view the regulation subject to review here should be set aside. For two separate reasons, I consider New Mexico Air Quality Control Regulation 652 limiting sulfur dioxide (SO2) emissions from existing copper smelters, to be not in accordance with law. Section 74-1-9 1(3), N.M.S.A. 1978.
The Air Quality Control Act directs the Board to consider the “economic value of the sources and subjects of air contaminants” and the “economic reasonableness of reducing or eliminating air contaminants from the sources involved.” Section 74-2-5 B(l)(b) and (c), N.M.S.A.1978. The Environmental Improvement Act directs the Board to consider the “economic * * * value of the regulated activity and the * * economic * * * effects of environmental degradation” as well as the “economic reasonableness of reducing, eliminating or otherwise taking action with respect to environmental degradation.” Section 74-1-9 A(2) and (3), N.M.S.A.1978. Although it is not necessary for administrative agencies to adopt “formal findings in a judicial sense,” administrative agencies must give some indication of their reasoning and of the basis upon which the regulations were adopted. New Mexico Municipal League v. New Mexico Environmental Improvement Bd., 88 N.M. 201, 539 P.2d 221 (Ct.App.1975), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975). Thus, the Board’s formal reasons must be read in conjunction with the entire record. The record clearly demonstrates that “economic data played no role at all” in the promulgation of Regulation 652. The position of the Board appears to be an acceptance of a federal dictate that economics are to be given consideration only under a nonferrous smelter order. When the statute requires the Board to “give weight it deems appropriate” to economics, it cannot mean the Board is free to give economics no weight. Accordingly, the regulation should be set aside.
Further, although the Board may not set a new standard or adopt regulations implementing or explaining it for any reason other than to “prevent or abate air pollution,” Public Service Co. v. New Mexico Environmental Improvement Board, 89 N.M. 223, 549 P.2d 368 (Ct.App.1976), cert. denied, 89 N.M. 321, 551 P.2d 1368 (1976), in this case it set the standard because “[t]he federal Clean Air Act * * * does not permit the Supplementary Control System.” Therefore, even though the Board also included among its reasons for adoption of the regulation that the amendment is necessary to meet state standards, it is clear that the amendment is not needed to prevent or abate air pollution, but, rather, to preclude Kennecott from preventing or abating air pollution by a particular method that is in disfavor with EPA.
By setting the emission limit at 3,550 pounds per hour, the Board has effectively specified that the “continuous control method” rather than the “supplemental control method” must be used to prevent or abate air pollution at Kennecott’s smelter. Rejection of the “supplemental control method” without regard to § 74-2-5 B, N.M.S.A. 1978, results in a regulation “not in accordance with law” and should therefore be set aside.