(concurring in part and dissenting in part).
{43} I agree that this Court has jurisdiction to address the merits of this appeal. However, because I do not believe that the Act contemplates the type of modification to the permit made by the Secretary without a public hearing, I respectfully dissent.
{44} I too believe that the history of the proceedings is relevant to the determination of this appeal. Although we are concerned with the decision of the Secretary to modify a condition of the permit, the Secretary’s final order adopting the permit was the result of lengthy public hearings which resulted in recommended findings of fact and conclusions of law of the hearing officer. In his final order, the Secretary revised the condition, but adopted all of the hearing officer’s findings of fact and the rest of the hearing officer’s conclusions of law without change. We have previously emphasized the importance of findings of fact made by a hearing officer in a complex case such as this one. Atlixco Coalition v. Maggiore, 1998-NMCA-134, ¶¶ 22-24, 125 N.M. 786, 965 P.2d 370.
{45} The hearing officer found that until May 1998, DOE had committed to managing all waste disposed at WIPP as though it was hazardous waste under the Act. Thus, until May 1998, DOE had agreed to subject non-mixed TRU waste (radioactive waste), to the characterization process. The hearing officer also found as fact that “[t]he disposal of significant quantities of waste that has not been characterized in accordance with the [Waste Analysis Plan] poses a direct threat to human health and the environment. Indeed, waste characterization is ‘the linchpin’ of the [Hazardous Waste Act]____” The findings indicate that the lack of characterization would create a number of problems, particularly with respect to the presence of Volatile Organic Compounds (VOCs), some of which are carcinogenic.
{46} In his narrative discussion, the hearing officer addressed DOE’s argument that the Department could not, as a matter of law, impose Condition IV.B.2.b. In addition, the hearing officer stated that:
Finally, the relatively small volume of TRU non-mixed waste disposed prior to issuance of the final permit, apparently characterized in substantially the same manner as if TRU mixed waste, should pose no risk to public health or the environment. And, of course, Applicants could not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU already contains TRU non-mixed waste not characterized in accordance with the WAP.
The Department emphasizes the first sentence, while Southwest Research emphasizes the second. At oral argument, Southwest Research contended that the first sentence had to be understood in the context of the proceedings taking place at the time. A number of groups involved in the hearing had argued that the hearing officer should deny the permit entirely because the disposal of waste that was not fully characterized was a substantial modification for which the public had not been given appropriate notice. Also at oral argument, the Department indicated that there had been testimony about what has been referred to as waste stream “TA 55-43, Lot No. 01” from Los Alamos National Laboratory. This is the same waste stream that was allowed into WIPP as a result of the federal court decision in March 1999. See Richardson, 39 F.Supp.2d at 49. The Department emphasized that, with the exception of this shipment, WIPP did not begin accepting waste until after the Department had concluded its testimony during the public hearing.
{47} I assume that this Court can consider the narrative portion of the hearing officer’s report. As elucidated at oral argument, it seems apparent that the statement, which was not carried forward into the findings of fact, was a reference to a particular stream of waste on which the parties had submitted evidence. However, as mentioned in the complaint filed in United States v. New Mexico Environmental Department, No. CV-99-1280 (D.N.M. filed Nov. 3,1999), between the end of the public hearings in March 1999 and the issuance of the Final Permit in October 1999, there were approximately 37 additional shipments of waste to WIPP, including shipments of waste from other sources.
{48} As to the condition at issue in this case, the hearing officer proposed to adopt either the version of the condition proposed by the Department or a substitute version recommended by the hearing officer. The version of the condition proposed by the Department in its proposed findings and conclusions read as follows:
Specific prohibition — The Permittees shall not dispose non-mixed TRU waste in any Underground HWDU unless such waste is characterized in accordance with the requirements of the WAP specified in Permit Condition II.C.l. The Permittees shall not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU contains non-mixed TRU waste not characterized in accordance with the requirements of the WAP.
The substitute proposed by the hearing officer read as follows:
Specific prohibition — after this Permit becomes effective, the Permittees shall not dispose non-mixed TRU waste in any Underground HWDU unless such waste is characterized in accordance with the requirements of the WAP specified in Permit Condition II.C.l. The Permittees shall not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU contains non-mixed TRU waste not characterized in accordance with the requirements of the WAP.
The underlined language is the language that the hearing officer proposed to add to the condition.
{49} The second sentence of the condition was adopted by the hearing officer verbatim from the version proposed by the Department. The hearing officer found as fact that the condition was necessary to protect human health and the environment. The sentence of the narrative that might call this finding into question was based on evidence concerning one particular shipment of waste. Giving effect to all the relevant language in the hearing officer’s report, I believe it is apparent that the hearing officer adopted the second sentence of the condition at the request of the Department and that the Department and the hearing officer viewed the sentence as prohibiting the disposal of mixed waste (radioactive and hazardous) in any panel that already contained non-mixed (radioactive) waste not characterized in accordance with the Waste Analysis Plan.
{50} Condition IV.B.2.b as adopted by the Secretary in the final order is consistent with these findings of fact, and I have difficulty reading the condition apart from these findings of fact. Indeed, the Secretary intended that both clauses of the condition apply only after the permit became effective. When I read the findings of fact that the Secretary adopted, however, I do not see the same clear intent that the majority attributes to the Secretary. The findings of fact indicate an interpretation of the condition that after the permit was issued, mixed waste could not be disposed in the same panel as non-mixed (radioactive) waste which had not been characterized in accordance with the waste analysis plan. Otherwise, the characterization process would not have operative effect.
{51} I agree that the Secretary intended at the time of the final order that the introductory clause “after this permit becomes effective” would apply to both clauses of the condition. But, even with this reading, the findings of fact adopted by the Secretary support the conclusion that the uncharacterized, non-mixed waste referred to in the second clause refers to waste already disposed in “any underground HWDU.” This reading is grammatically correct in that the introductory clause “[ajfter this permit becomes effective,” relates to both clauses (1) and (2), stating the starting point at which the Permittees were prohibited from disposing waste in ways addressed by the permit. The introductory clause modifies the verb “dispose” within the words “shall not dispose” in both clauses. It does not relate to the dependent clause that follows or modify “non-mixed TRU waste,” the waste already contained in the underground HWDU, the result accomplished by the modification. See William A. Sabin, The Gregg Reference Manual 516-17 (8th ed.1996) (explaining that an adverbial clause functions as an adverb to the main, independent clause and may modify a verb, adverb, or adjective, but not a noun); State v. Johnson, 2001-NMSC-001, ¶ 13, 130 N.M. 6, 15 P.3d 1233 (applying rules of grammar to statutory construction); Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶¶ 26-28, 123 N.M. 752, 945 P.2d 970 (valuing grammatical correctness and the ability to interpret language based on rules of grammar).
{52} Moreover, as Southwest Research argues, the Department’s reading of the second clause removes any meaning from the clause because the Permittees could not dispose non-mixed waste which was not characterized after the permit became effective by operation of the first clause. Given the magnitude of this case, I have difficulty believing that the Secretary would adopt meaningless and ungrammatical language in his final order.
{53} Indeed, the Secretary had the opportunity to adopt the language of the modification in adopting the final order. The modification revised the condition to read:
Specific prohibition — [Ajfter this [pjermit becomes effective, (4) the Permittees shall not dispose non-mixed TRU waste in any [Underground HWDU unless such waste is characterized in accordance with the requirements of the WAP specified in Permit Condition II.C.l, and (2).the The Permit-tees shall not dispose TRU mixed waste in any [underground HWDU if the [underground HWDU contains non-mixed TRU waste which was disposed of after this permit became effective and was not characterized in accordance with the requirements of the WAP. (Emphasis added.)
The underlined language was added and the stricken language deleted. "When the Secretary reopened the record, DOE asked the Secretary to revise the second sentence of the condition to read:
The Permittees shall not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU contains non-mixed TRU waste which was disposed of after this permit became effective and was not characterized in accordance with the requirements of the WAP. (Emphasis added.)
The Permittees expressed concerns that without the underlined language, they “could be required to suspend disposal operations at WIPP for several months until Panel 2 is ready for waste.” By contrast, Southwest Research took the position that the Secretary had the authority to impose any conditions necessary to protect public health and the environment. In addition, it argued precisely the interpretation of the second sentence that DOE wished to avoid — that once the permit was issued, the second sentence would prohibit the disposal of mixed waste in any HWDU (panel) that already contained non-mixed (radioactive) waste that had not been characterized in accordance with the permit. The Department’s position was that the second sentence could not as a matter of law apply to waste disposed at WIPP before the Final Permit was issued. The Department recommended the language of the condition as adopted by the Secretary. The Secretary did not adopt DOE’s proposed language.
{54} The Department also argues on appeal that language in the Secretary’s final order explains the reasons that he adopted the particular language of the condition. This explanation reads as follows:
The Permit Applicants have expressed concern that Permit Condition IV.B.2.b will apply to waste disposed of at WIPP prior to the HWA Permit becoming effective. Permit Applicants are concerned that they will be subject to enforcement because they have already disposed of waste not characterized in accordance with the WAP. Furthermore, Permit Applicants are concerned that they will not be able to dispose of additional waste in panel 1 after the HWA Permit becomes effective, because there is already waste in panel 1 not characterized in accordance with the WAP.
These concerns are misplaced. The terms of the HWA permit only apply after the permit becomes effective. [The Department] does not intend that the permit condition apply to the pre-permit period. See [the Department’s] Comments to Hearing Officer’s Report at 13-15.
[The Department] testimony on the permit condition was [given] prior to the ruling in New Mexico ex rel. Madrid v. Richardson, ... giving interim status to WIPP. (Emphasis added.)
The Department views this language as indicating that the Secretary did not intend to adopt a version of the condition that would, in effect, prohibit disposing of all waste in Panel 1 because that panel already contained waste not characterized in accordance with the waste analysis plan. However, the condition does not regulate waste disposed during the pre-permit period. Nor does it prohibit the disposal of all waste in a panel that contains waste that has not been properly characterized. Instead, it only prohibits the disposal of mixed waste in such a panel.
{55} Thus, it is not as clear to me as it is to the majority that the Secretary made a mistake in his choice of language. However, even if there was a mistake, I do not believe the modification made by the Secretary can be fairly characterized as a minor or Class 1 modification as defined in the regulations given the lack of consistency with the hearing officer’s findings of fact which were adopted by the Secretary, the language of the condition, and the record available to this Court in this case.
{56} Class 1 modifications are relatively minor matters. The regulations define them as follows:
Class 1 modifications apply to minor changes that keep the permit current with routine changes to the facility or its operation. These changes do [not] substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment.
40 C.F.R. § 270.42(d)(2)(i). Appendix I to 40 C.F.R. § 270.42 lists an administrative or informational change as a Class 1 modification, and also lists within the same definition: correction of typographical errors; equipment replacement or upgrading with functionally equivalent components; increases (but not decreases) in the frequency of monitoring, reporting, sampling, or maintenance activities; and changes to remove permanent conditions that are no longer applicable because the standards upon which they are based are no longer applicable to the facility.
{57} When I read this listing as stated in Appendix I in connection with the definition of a minor change as one intended to maintain the permit current “with routine changes to the facility or its operation,” I do not believe that the modification in this case fits within the regulatory intent of a minor modification. The Secretary’s modification was not intended to respond to a routine change at the facility or its operation. 40 C.F.R. § 270.42(d)(2)(i). Rather, it directly affected the manner in which the Permittees handled the principal operations at the facility. I agree that the Permittees should have acted cautiously before they acted contrary to the language of the condition as set forth in the final order. However, even if it contained ambiguity, it stated a required course of conduct until clarified. Because a clarification in favor of the Permittees would alter the manner of waste disposal, such clarification would “alter” the operation of the facility such that it would be a Class 3 modification under the regulations. See 40 C.F.R. § 270.42(d)(2)(iii). The Secretary had the authority to modify the permit to make such a clarification, but I believe that the Act and regulations require a public hearing before he could take such action.
{58} Accordingly, I would set aside the modification of the permit.