(dissenting).
I dissent.
The order of the Board should be reversed and vacated because it was not rendered in accordance with law.
Introduction.
On February 8, 1979, Duke City filed its petition for variance from AQCR 402(A) in order to allow it to exceed 20% opacity in emissions from the Cuba and Española incinerators. The period of time desired was one year. This period of time expired February 8, 1980. Presently nine months have passed beyond the expiration date.
A public hearing was held June 28, 1979 and an order was entered October 12, 1979. A variance was granted for the Cuba facility, but not for Española. On appeal, Duke City was granted a stay of enforcement of Regulation 402 pending appeal. Duke City may have had some 21 months in which it was allowed a variance from AQCR 402(A) and it may have exceeded 20% opacity in its emissions.
A question arose whether the appeal may have become moot. Upon suggestion that this matter be called to the attention of the parties for an explanation, the panel refused.
This dissenting opinion is written absent a determination whether the period of time desired has expired.
A. The order entered was not in accordance with law.
If the period of time for which a variance is desired has not expired, the order of the Board should be reversed and vacated because it was not rendered in accordance with law. The order was void for five reasons:
(1) The Board was without authority to hold a public hearing.
Section 74-2-8(D), N.M.S.A.1978 reads:
Any person seeking a variance shall do so by filing a petition for variance with the director. The director shall promptly investigate the petition and make recommendation to the board as to the disposition thereof. Upon receiving the recommendation of the director, the board shall, if the recommendation favors a variance, hold a public hearing prior to the granting of any variance. If the board is opposed to the granting of the variance, then a hearing shall be held upon the request of the petitioner, and in such hearing the burden of proof shall be upon the petitioner.
After Duke City filed its petition, the director made an investigation. On March 22, 1979, the director recommended to the Board that the division did not favor granting the requested variance for the Española facility.
Despite the unfavorable recommendation of the director, the Board initially, at a meeting held April 20, 1979, favored granting Duke City’s petition and scheduled the petition for hearing in Española on June 7, 1979, but postponed the hearing until June 28, 1979. The Board did not then oppose the variance. Only Duke City could request a hearing. It did not do so. At the hearing then held, the hearing officer announced:
This is a public hearing of the New Mexico Environmental Improvement Board.
Section 74-2-8(D), in mandatory language, ordered the Board to hold a public hearing only “if the recommendation favors a variance.” The director’s recommendation was unfavorable. The Board, therefore, was without authority to hold the meeting.
Subsequently, on October 12, 1979, the chairman of the Board entered an order that denied the variance requested for the Española facility. This order was not in accordance with law.
(2) The order does not show concurrence of three members of the Board.
Section 74-2-3 provides that “a majority of the environmental improvement board constitutes a quorum, but any action, order or decision of the environmental improvement board requires the concurrence of three members present at a meeting.” The order does not show concurrence of three members present at the meeting in which the order was entered. This appears to be a jurisdictional question. If less than three members concurred, the order of the Board was invalid. Petition of Kinscherff, 89 N.M. 669, 556 P.2d 355 (Ct.App.1976). A concurrence not having been shown in the record, the order entered was not in accordance with law.
(3) The Board did not consider essential factors in its denial of the variance.
Section 74 — 2-8(B) reads:
B. No variance shall be granted pursuant to this section until the board has considered the relative interest of the applicant, other owners of property likely to be affected by the discharges and the general public. [Emphasis added.]
These provisions are mandatory. There is no indication in the order that the Board considered the three factors mentioned. What meaning can be given to these vague and uncertain concepts is a matter of guess and speculation. The order was not in accordance with law.
(4) An incomplete hearing does not meet statutory requirements of a public hearing.
The hearing officer announced:
* * * The Board granted the variance requests at their April meeting and also that the record be held open for a period of time after today’s hearing to allow those who could not attend to send in statements for the record. * * * will decide at the end of this hearing how long that record will remain open * * *,
At the close of the case, the hearing officer stated:
In accordance with the Chairman’s instructions, this record will be kept open for additional written testimony only, to be presented to the Environmental Improvement Board, for thirty days after today. * * * [Emphasis added.]
The hearing was incomplete.
After the adjournment on June 28, 1979, the Board accepted as “written testimony,” a series of letters written contra the position of Duke City and a lengthy Duke City “Statement For The Public Record Regarding Variance Petitions Of Duke City Lumber” and a report attached thereto. This was not written testimony.
The words “public hearing” mean completed public hearing as distinguished from an adjourned hearing. The Board was without authority to enter an order on an incompleted public hearing and this Court will refuse to enforce the order. In re Atchinson, T. & S. F. Ry. Co.’s Protest of Rates, 44 N.M. 608, 107 P.2d 123 (1940); Mountain States Tel. & Tel. Co. v. State Corp. Com’n, 65 N.M. 365, 337 P.2d 943 (1959). Both cases were followed in North State, Aster, Etc., Ass’n v. City of Chicago, 131 Ill.App.2d 251, 266 N.E.2d 742 (1970), and Mayfield Gas Company v. Public Service Commission, 259 S.W.2d 8 (Ky.1953).
The “public hearing” was not held in accordance with law.
(5)The board failed to make findings essential to deny the variance.
Section 74~2-8(A) reads:
A. The board may grant an individual variance from the limitations prescribed * * * whenever it is found, upon presentation of adequate proof, that compliance with any part of that act * * * will result in an arbitrary and unreasonable taking of property or will impose an undue economic burden upon any lawful business * * * and that the granting of the variance will not result in a condition injurious to health or safety. [Emphasis added.]
The Board made the following findings:
(1) There was a great deal of community objection to emissions from the Española facility.
(2) The Board has been very patient with Duke City over the years.
(3) Although Duke City has made strides toward solving the woodwaste problem, the hearing record does not support the variance petition.
(4) The record shows that other alternatives are available.
The Board failed to make any essential findings. The order entered was not in accordance with law.
It must be noted that a grant of an individual variance from the limitations prescribed rests within the discretion of the Board. This is a powerful weapon placed in its hands. Even though Duke City established all of the factors essential to procure a variance as a matter of law, the Board was not mandated to grant the variance. It may do so upon compliance with the statutes. Can we say the Board abused its discretion in denying Duke City a variance? Did the Board act beyond the bounds of reason?
We are committed to the rule that courts are vested with power and authority to set aside an order of an administrative body if it is unreasonable, unlawful, arbitrary, capricious, or not supported by evidence. Ferguson-Steere Motor Co. v. State Corp. Com’n, 63 N.M. 137, 314 P.2d 894 (1957). Regardless of any discretion exercised by the Board, if its order is not in accordance with law, it is unlawful and can be set aside.
I agree that “The authority of the Board * * * should be construed as a narrow exception to the Board’s duty to prevent or abate air pollution, and should not be lightly exercised,” but it must be exercised in accordance with law.
B. The burden of proof did shift to EID.
Section 74-2-8(D), N.M.S.A.1978 provides that “in such [variance] hearings the burden of proof shall be upon the petitioner.” Procedures used in the adoption of regulations require a public hearing. Here, “the board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing.” Section 74-2-6. Burden of proof is not required at this public hearing. We can deduce that since no petition is filed and no issue has been presented, no person appearing has any burden to carry before the Board.
“Public Hearing” is not defined in the Act when a party seeks a variance. “The term ‘public hearing’ has consistently been held to require that the hearing include the right to appear and give evidence and also the right to hear and examine witnesses whose testimony is presented by opposing parties.” People ex rel. Endicott v. Huddleston, 34 Ill.App.3d 799, 340 N.E.2d 662 (Ct. App.1975).
In the instant case, Duke City filed a petition to secure a variance. At the hearing, the division attorney for the Environmental Improvement Division (EID) announced that he would “be representing the Environmental Division at this hearing. The hearing proceeded with Duke City and EID as opposing parties. Testimony was presented by both parties in the same manner that any civil case is tried in the district court.
EID claims that Duke City made a “startling statement” that the burden shifted to EID. It said:
The statute does not provide for shifting of the burden of proof. In fact, there is no requirement that EID even participate in the hearing. * * * [Emphasis added.]
Of course, EID was not required to participate in the hearing. EID could have absented itself and defaulted. Why, then, did EID strongly defend the public and seek to destroy the burden placed on Duke City? Why did EID complain that Duke City failed to cite any of EID’s testimony regarding one point? If not “burden of proof” or “going forward with the evidence,” what name will EID place upon its presentation of evidence? Its attempt to transform a full fledged public hearing into a show acted by Duke City alone, expressed the zeal with which EID sought to protect the investigation and recommendation of its director. The Board was not impressed with the lengthy findings of the director because it did not follow them in its order. Neither was it impressed with the witnesses who testified for EID. The Board felt that it had been patient with Duke City and no more favors would be granted.
When Duke City met its burden of proof, and EID went forward with its evidence, the burden of going forward, figuratively, may be described as a “shifting” of the burden. It means nothing more than a deviation of the burden of presenting evidence in the progress of the hearing.
True, the statute did not provide for “shifting” the burden of proof; neither do the Rules of Civil Procedure. A statute which creates a public agency, with a public hearing included, does not, and cannot, control the conduct of opposing lawyers in the presentation of evidence. To suggest that a statute should provide that going íorward with the evidence shifts the burden of proof is naivete.
When EID went forward with its evidence to disprove the validity of Duke-City’s desire for a variance, the burden did “shift” to EID. If EID had not proceeded, Duke City’s petition would have been established by uncontradicted and undisputed facts.
EID, in its continued zeal to defeat Duke City, claims that letters mailed in at the request of the Board, after the hearing has been adjourned, were relevant, material and admitted without objection and may be treated as legal evidence. Under the circumstances shown, this contention is without merit.
The Environmental Improvement Act and the Air Quality Control Act are deficient in many respects and create many problems because neither the Board nor the Division would agree to be bound by the “Administrative Procedures Act,” §§ 12-8-1, N.M.S.A.1978, et seq. As stated on several occasions, state agencies must have influenced the adoption of and preserved the legislative enactment pertaining to the applicability of the Act. Section 12-8-23 reads in pertinent part:
The provisions of the Administrative Procedures Act apply to agencies made subject to its coverage by law, or by agency rule or regulation if permitted by law.
This Act was adopted in 1969. To date no state agency has been subject to its provisions. For over a decade, it has been a dead letter in the judicial process. Until the legislature makes the Act applicable to every agency, the conduct of state agencies will continue to be, from time to time, an affront to persons, firms and corporations subjected to the whim and caprice of those who administer it.