May 14, 2025- Alto Coalition for Environmental Preservation v. Roper Construction, Inc., No. A-1-CA-41197

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: May 14, 2025	3
No. A-1-CA-41197	4
ALTO COALITION FOR ENVIRONMENTAL	5
PRESERVATION,	6
Appellant,	7
v.	8
ROPER CONSTRUCTION, INC.,	9
Petitioner-Appellee	10
and	11
NEW MEXICO ENVIRONMENTAL IMPROVEMENT	12
BOARD,	13
Appellee,	14
and	15
NEW MEXICO ENVIRONMENT DEPARTMENT,	16
Intervenor-Appellee.	17
IN THE MATTER OF THE PETITION FOR	18
HEARING ON AIR QUALITY PERMIT NO. 9295.	19
APPEAL FROM THE ENVIRONMENT IMPROVEMENT BOARD	20
Phoebe Suina, Board Chair	21
Court of Appeals of New Mexico
Filed 5/14/2025 12:04 PM

Hinkle Shanor LLP	1
Thomas M. Hnasko	2
Timothy B. Rode	3
David A. Lynn	4
Santa Fe, NM	5
for Appellant	6
Montgomery & Andrews, P.A.	7
Louis W. Rose	8
Kari E. Olson	9
Shelly L. Dalrymple	10
Daniel B. Goldberg	11
Santa Fe, NM	12
for Appellee Roper Construction, Inc.	13
Raúl Torrez, Attorney General	14
Kristin E. Hovie, Assistant Attorney General	15
Santa Fe, NM	16
for Appellee New Mexico Environmental Improvement Board	17
Chris Vigil, Assistant General Counsel	18
Albuquerque, NM	19
for Intervenor New Mexico Environment Department	20

OPINION	1
BACA, Judge.	2
{1} 	This is an appeal from the Environmental Improvement Board’s (EIB) final	3
order reversing the Deputy Secretary of the New Mexico Environment Department’s	4
(NMED) order denying Appellee Roper Construction, Inc.’s (Roper) Air Quality	5
Construction Permit (Permit 9295) for construction and operation of a concrete batch	6
plant. Appellant Alto Coalition for Environmental Preservation (Alto) contends that	7
(1) the EIB’s final order was arbitrary and capricious, an abuse of discretion, not	8
based upon substantial evidence, and otherwise not in accordance with law; (2) the	9
EIB failed to address other errors in Roper’s emissions modeling, thereby preventing	10
meaningful 	appellate 	review; 	(3) 	procedural 	irregularities 	during 	the 	EIB’s	11
proceedings on both Permit 9295 and Alto’s stay request violated Alto’s procedural	12
due process rights; and (4) the EIB erred in concluding that it lacked jurisdiction to	13
consider whether the Roper permit application’s use of the AP-42 emissions factor	14
for public paved roads reflected actual conditions at Roper’s concrete batch plant.	15
Because the parties submitted competing technical evidence to estimate emissions	16
and EIB had jurisdiction to review whether the permit demonstrated compliance	17
with all state and federal requirements and emissions standards, we reverse and	18
remand to the EIB for reconsideration.	19

2
BACKGROUND	1
{2} 	Roper applied to the NMED for Permit 9295, a minor source air quality	2
construction permit.0F
1 Thereafter, the Air Quality Bureau (the AQB) conducted its	3
administrative review to determine whether Roper’s application contained the	4
required components. See 20.2.72.207(A) NMAC. Finding all required components	5
present, the AQB ruled Roper’s application administratively complete.	6
{3} 	Subsequently, the AQB began its technical review, which requires it to verify	7
the applicant’s emissions calculations and to determine whether the application	8
meets applicable federal and state regulations and emission standards. During its	9
technical review, AQB staff determined that Roper’s application used the correct	10
AP-42 emissions factor and formulas in calculating emissions for all sources. Citing	11
federal sources, an AQB analyst testified that AP-42 emissions factors “are	12
representative values that relate the quantity of a pollutant released to the ambient	13
air with an activity associated with the release of that pollutant.” See Environment	14
1 “[T]he Air Quality Control Act defines a major source of ozone as one, which
emits 250 [tons per year (tpy)] or more of pollutant—which means that minor
sources of ozone emit less than 250 tpy of pollutants. Per our regulations, [the]
NMED shall deny any application for a permit, whether it be for a minor or major
source, if the construction, modification, or permit revision will cause or contribute
to air contaminant levels in excess of any [National Ambient Air Quality Standard]
unless the ambient air impact is offset by meeting the requirements of either 20.2.79
NMAC or 20.2.72.216 NMAC, whichever is applicable.” WildEarth Guardians v.
N.M. Env’t Improvement Bd., 2024-NMCA-021, ¶ 20, 542 P.3d 820 (emphasis
omitted) (alteration, internal quotation marks, and citations omitted).

3
Protection Agency (EPA), AP-42, Compilation of Air Emissions Factors from	1
S t a t i o n a r y 	S o u r c e s , 	I n t r o d u c t i o n 	a t 	1 , 	( 2 0 2 4 ) ,	2
https://www.epa.gov/system/files/documents/2024-01/introduction_2024.pdf. AQB	3
staff also reviewed the modeling Roper submitted, and attested that Roper’s	4
application followed appropriate modeling practices. Upon completing its technical	5
review, the AQB recommended that the NMED issue Permit 9295.	6
{4} 	In light of robust public opposition to Permit 9295, the NMED held a public	7
hearing to determine whether Roper’s application complied with applicable air	8
quality standards. Following that public hearing, the hearing officer issued his report	9
recommending that Permit 9295 be denied. The NMED Deputy Secretary adopted	10
the Hearing Officer’s Report and entered a final order denying Permit 9295. Roper	11
petitioned for an appeal before the EIB.	12
{5} 	The NMED filed an answer to Roper’s appeal petition. In its answer, the	13
NMED in relevant part agreed with Roper that (1) Roper’s air quality construction	14
permit application complied with all applicable state and federal requirements for	15
approval; (2) a person opposed to the relief sought in a petition cannot fulfill the	16
burden of production by raising doubt that the permit should be granted, but instead	17
must affirmatively demonstrate that the permit would violate state and/or federal	18
regulations, or that using different inputs in the modeling would result in an	19
exceedance of state or federal air quality standards; and (3) Roper’s modeling used	20

4
an appropriate AP-42 emissions factor for haul roads based on Roper’s maximum	1
proposed usage. Following a three-day evidentiary hearing, the EIB convened to	2
deliberate. During its deliberations, the EIB engaged in a lengthy discussion in which	3
it evaluated the evidence and attempted to distinguish and apply the burdens of	4
production and persuasion. Ultimately, the EIB reversed NMED’s denial of Permit	5
9295 and in relevant part, determined that it lacked “jurisdiction over [Roper’s] use	6
of AP-42.” Alto appeals.	7
DISCUSSION	8
{6} 	One of the many issues before the EIB was the application of the AP-42	9
emissions factors, which the parties agree can be used to estimate emissions from	10
various sources of air pollution. NMED and Roper maintain that Roper’s use of the	11
AP-42 emissions factor for public paved roads reflected actual conditions at Roper’s	12
concrete batch plant. Alto contends that Roper’s use of the AP-42 emissions factor	13
for public paved roads, instead of the AP-42 emissions factor for industrial haul-	14
roads within concrete batch plants, resulted in an underestimation of emissions.	15
Thus, the parties dispute which AP-42 emissions factor applied to accurately	16
estimate emissions for the activity that Roper sought a permit to conduct.	17
{7} 	In New Mexico, air quality construction permits are required for “[a]ny person	18
constructing a stationary source which has a potential emission rate greater than 10	19
pounds per hour or 25 tpy of any regulated air contaminant for which there is a	20

5
[n]ational or New Mexico Ambient Air Quality Standard.” 20.2.72.200(A)(1)	1
NMAC; see NMSA 1978, § 74-2-7(A)(1) (2021). An applicant seeking an air quality	2
construction 	permit 	must 	demonstrate 	compliance 	with 	all 	state 	and 	federal	3
requirements and emission standards. 20.2.72.208 NMAC. At its heart, therefore,	4
one of Alto’s primary positions is that Roper’s permit application does not	5
demonstrate that the activity will comply with emissions standards because an	6
improper AP-42 emissions factor was used to estimate emissions, and that the EIB	7
improperly determined it had no jurisdiction to review which AP-42 factor was used	8
to estimate emissions. For the reasons expressed below, we agree with Alto that the	9
EIB has jurisdiction to review the propriety of the AP-42 factor used by a permit	10
applicant to estimate emissions.	11
I. 	The EIB’s Final Order is Arbitrary, Capricious, and Otherwise not in	12
Accordance with Law	13
A. 	Standard of Review	14
{8} 	On appeal, this Court may set aside a determination of the EIB only if it is	15
found to be “(1) arbitrary, capricious or an abuse of discretion; (2) not supported by	16
substantial evidence in the record; or (3) otherwise not in accordance with law.”	17
NMSA 1978, § 74-2-9(C) (1992). “An agency action is arbitrary and capricious if it	18
is unreasonable, if it provides no rational connection between the facts found and the	19
choices made, or if it entirely omits consideration of important aspects or relevant	20
factors of the issue at hand.” N.M. Mining Ass’n. v. N.M. Water Quality Control	21

6
Comm’n, 2007-NMCA-010, ¶ 22, 141 N.M. 41, 150 P.3d 991. “A ruling that is not	1
in accordance with law should be reversed if the agency unreasonably or unlawfully	2
misinterprets or misapplies the law.” Id. ¶ 11 (internal quotation marks and citation	3
omitted).	4
B. 	The EIB’s Jurisdiction	5
{9} 	Alto argues the EIB erred in concluding that it lacked jurisdiction to consider	6
whether the AP-42 emissions 	factor for public paved 	roads reflected actual	7
conditions at Roper’s concrete batch plant. Because “[t]he question of jurisdiction	8
compels an answer” and “when a jurisdictional claim is raised, the issue must be	9
decided before a court can review the case,” Smith v. City of Santa Fe, 2007-NMSC-	10
055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (internal quotation marks and citation	11
omitted), we turn first to address this argument. “We determine de novo whether an	12
agency has jurisdiction over the parties or the subject matter of a case.” Citizen	13
Action v. Sandia Corp., 2008-NMCA-031, ¶ 12, 143 N.M. 620, 179 P.3d 1228.	14
{10} 	NMED and Roper argue that “the AQB’s discretionary use of the AP-42	15
[emissions] factors is internal [NMED] policy over which the EIB does not have	16
jurisdiction.” Specifically, NMED contends that Alto advocates “impermissible de	17
facto rulemaking that strips Roper, the [NMED], and the people of New Mexico of	18
due process rights to weigh in on the promulgation of new regulations that would	19
impose new air quality standards.” The NMED further contends that “[b]ecause the	20

7
EIB has not promulgated regulations regarding the use of AP-42 [emissions factors],	1
and because the EIB does not have authority over internal [NMED] policy, the EIB	2
cannot dictate which AP-42 emission factors the [NMED] accepts, provided that . . .	3
issuing the permit will not cause or contribute to any exceedances.” The NMED and	4
Roper misapprehend Alto’s argument on appeal.	5
{11} 	Alto does not contend that the EIB has jurisdiction to impose a universally	6
applicable rule or requirement that all applicants must use a specific AP-42	7
emissions factor. Rather, Alto argues that the EIB has the authority to evaluate	8
whether a construction permit will cause or contribute to air contaminant levels in	9
excess of a national or state standard, and that the EIB cannot make such a	10
determination without being able to consider whether the applicant used an AP-42	11
emissions factor that accurately estimates emission levels at the proposed facility.	12
We agree.	13
{12} 	“Administrative bodies are the creatures of statutes. As such they have no	14
common law or inherent powers and can act only as to those matters which are within	15
the scope of the authority delegated to them.” Pub. Serv. Co. of N.M. v. N.M. Env’t	16
Improvement Bd., 1976-NMCA-039, ¶ 7, 89 N.M. 223, 549 P.2d 638. In other	17
words, “[t]he subject matter jurisdiction of an administrative agency is defined by	18
statute, and an agency is limited to exercising only the authority granted by statute.”	19
Citizen Action, 2008-NMCA-031, ¶ 12. Thus, in determining the issue of jurisdiction	20

8
in this instance, we must construe the Air Quality Control Act (the AQCA) and	1
accompanying regulations. “We are not bound by an agency’s interpretation of a	2
statute, since it is a matter of law that is reviewed de novo.” N.M. Mining Ass’n,	3
2007-NMCA-010, ¶ 11.	4
{13} 	When 	construing 	a statute, 	“[o]ur 	main 	goal 	is 	to 	give effect 	to 	the	5
[L]egislature’s intent.” Id. ¶ 12. “[T]he plain language of a statute is the primary	6
indicator of legislative intent” and we are to “give the words used in the statute their	7
ordinary meaning unless the [L]egislature indicates a different intent.” High Ridge	8
Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413,	9
970 P.2d 599 (internal quotation marks and citation omitted). “Agency rules are	10
construed in the same manner as statutes.” N.M. Mining Ass’n, 2007-NMCA-010,	11
¶ 12.	12
{14} 	Pursuant to Section 74-2-7(C)(1), the EIB may deny an application for a	13
construction permit if it appears that the construction “(a) will not meet applicable	14
standards, rules or requirements of the [AQCA] or the federal act; (b) will cause or	15
contribute to air contaminant levels in excess of a national or state standard . . . ; or	16
(c) will violate any other provision of the [AQCA] or the federal act.” Nothing in the	17
plain language of Section 74-2-7(C)(1)(b), or any other section of the AQCA or the	18
applicable rules and regulations, limits what the EIB may consider in determining	19
whether construction will cause or contribute to air contaminant levels in excess of	20

9
a national or state standard. Indeed, NMED acknowledges that EIB can consider the	1
evidence of different emission factors to the extent that “there was a dispositive	2
showing that exceedances of air quality standards would occur.” NMED cites no	3
authority for its inclusion of a “dispositive showing” requirement, and we adopt no	4
such standard. “However, to the extent that the language could be considered	5
ambiguous, we can consider principles of statutory construction that are employed	6
with statutes that are unclear. In doing so, we must attempt to construe a statute	7
according to its obvious spirit or reason.” Dewitt v. Rent-A-Ctr., Inc., 2009-NMSC-	8
032, ¶ 29, 146 N.M. 453, 212 P.3d 341 (internal quotation marks and citation	9
omitted).	10
{15} 	As noted, the AQB expert, citing federal guidelines, testified that AP-42	11
emissions factors “facilitate estimation of emissions from various sources of air	12
pollution.” See EPA, AP-42, Introduction at 1. Where, as here, an applicant uses an	13
AP-42 emissions factor to estimate its emissions, we hold that the EIB has	14
jurisdiction to consider whether the applicant’s use of that AP-42 emissions factor	15
reflects that the proposed operation “will cause or contribute to air contaminant	16
levels in excess of a national or state standard.” See § 74-2-7(C)(1)(b). A contrary	17
holding would, in effect, render the EIB unable to meaningfully review permitting	18
decisions when parties present conflicting emissions estimates based on disputed	19
calculations or factual assumptions. 	See Dewitt, 2009-NMSC-032, ¶ 31 (“In	20

10
effectuating the intent of the Legislature, we must avoid any interpretations that	1
would lead to absurd or unreasonable results.”). We conclude that the EIB erred in	2
determining that it lacked jurisdiction to consider whether the choice of the AP-42	3
emissions factor to estimate emissions for the proposed permit would “cause or	4
contribute to air contaminant levels in excess of a national or state standard.” See	5
§ 74-2-7(C)(1)(b).	6
{16} 	Having concluded that the EIB erred in concluding that it lacked jurisdiction	7
to consider whether the AP-42 emissions factor for public paved roads reflected	8
actual conditions at Roper’s concrete batch plant, we hold that the EIB’s decision is	9
arbitrary and capricious, and not in accordance with law. See N.M. Mining Ass’n,	10
2007-NMCA-010, ¶¶ 11, 22 (stating that “[a] ruling that is not in accordance with	11
law should be reversed if the agency unreasonably or unlawfully misinterprets or	12
misapplies the law” and that “[a]n agency action is arbitrary and capricious . . . if it	13
provides no rational connection between the facts found and the choices made”	14
(internal quotation marks and citation omitted)). Therefore, we need not reach many	15
of Alto’s remaining arguments on appeal. As we explain, however, we find it prudent	16
to address two additional issues because we perceive that they are likely to arise	17
again on remand.	18

11
C. 	The Parties’ Respective Evidentiary Burdens and the EIB’s Order	1
{17} 	Alto also contends that the EIB misunderstood and misapplied the parties’	2
respective evidentiary burdens and did not include sufficient factual findings in the	3
final order. Alto submits that as a result, the EIB erroneously concluded that Alto	4
failed to fulfill its burden of production and sided with Roper whenever there was	5
conflicting evidence. “Nowhere was this more evident,” Alto argues, “than with	6
respect to Roper’s use of the AP-42 emissions factor for ‘public paved roads.’”	7
Because we are remanding to the EIB, we endeavor to provide the EIB and the	8
parties with clarity as to the parties’ respective evidentiary burdens and the	9
requirements for the final order. See State v. Carrasco, 1997-NMCA-123, ¶ 7, 124	10
N.M. 320, 950 P.2d 923 (addressing issues briefed by the parties that are likely to	11
reoccur on remand “in the interest of judicial economy”).	12
{18} 	“[T]he term ‘burden of proof’ has been used to describe two distinct concepts:	13
(1) the burden of persuasion, i.e., the burden to persuade the fact[-]finder; and (2)	14
the burden of production, i.e., the burden to produce evidence.” Strausberg v. Laurel	15
Healthcare Providers, LLC, 2013-NMSC-032, ¶ 24, 304 P.3d 409. The burden of	16
persuasion “never shifts from one party to the other, at any stage of the proceedings.”	17
Duke City Lumber Co. v. N.M. Env’t Improvement Bd., 1980-NMCA-160, ¶ 6, 95	18
N.M. 401, 622 P.2d 709 (internal quotation marks and citation omitted). The burden	19
of production, on the other hand, “may shift back and forth between the parties as	20

12
the [proceeding] progresses.” Id. (internal quotation marks and citation omitted). “It	1
is said that although a [petitioner] always has the burden of persuasion, which never	2
shifts, [they] may produce sufficient evidence that [their] opponent’s failure to	3
adduce contradictory proof either may lead to a decision for [petitioner], or must	4
lead to such a ruling.” Id.	5
{19} 	In an appeal before the EIB, “[t]he burden of proof shall be upon the	6
petitioner.” Section 74-2-7(K). “In a petition hearing, the petitioner has the burden	7
of going forward with the evidence and of proving by a preponderance of the	8
evidence the facts relied upon to justify the relief sought in the petition. Following	9
the establishment of a prima facie case by the petitioner, any person opposed to the	10
relief sought in the petition has the burden of going forward with any adverse	11
evidence and showing why the relief should not be granted.” 20.1.2.302 NMAC.	12
Based on this language, all parties agree, as do we, that the burden of production	13
shifted from Roper to Alto upon Roper’s establishment of a prima facie case, and	14
that the burden of persuasion remained with Roper. See Duke City Lumber Co.,	15
1980-NMCA-160, ¶ 6.	16
{20} 	Alto first submits that “the EIB [f]inal [o]rder does not address whether Roper	17
established a prima facie case entitling it to an air quality permit.” We disagree. The	18
EIB concluded in relevant part that Roper’s application “established that the	19
construction of the [f]acility meets the applicable statutory and regulatory standards,	20

13
will not cause or contribute to air contaminant levels in excess of national or state	1
standards . . . , and will not violate any other provision of the [AQCA].” See § 74-2-	2
7(C). Therefore, the EIB expressly concluded that Roper established its prima facie	3
case that the permit should issue.	4
{21} 	However, Alto asserts, even if Roper established a prima facie case, the EIB	5
erred because it misunderstood that it was the burden of production, and not the	6
burden of persuasion, that shifted from Roper to Alto. Additionally, Alto contends,	7
the EIB misunderstood what was required of Alto to fulfill the burden of production.	8
Alto submits that contrary to the EIB’s understanding, the burden of production does	9
not require Alto to prove that Roper’s permit application should not be granted. In	10
other words, Alto contends that it need not “disprove the facts that would sustain the	11
petition.” Instead, Alto argues that to fulfill its burden of production it was only	12
required to “raise doubt” as to the correctness of Roper’s permit application.	13
{22} 	In determining what was required of Alto to fulfill the burden of production,	14
we look to our decision in Gemini Las Colinas, LLC v. New Mexico Taxation &	15
Revenue Department, 2023-NMCA-039, 531 P.3d 622, a tax protest case. Because	16
Gemini Las Colinas, LLC involves a substantially analogous burden-shifting scheme	17
to that of the AQCA, we find it instructive as to whether Alto may fulfill the burden	18
of production simply by raising doubt as to the correctness of Roper’s permit	19

14
application, or whether it must present evidence showing that Roper’s permit should	1
not be granted.	2
{23} 	In Gemini Las Colinas, LLC, we held that at the outset of a tax protest “a	3
protesting taxpayer bears both the burden to produce evidence (in order to overcome	4
the presumption of correctness) and the burden to ultimately prove its case by a	5
preponderance of evidence.” Id. ¶ 27. If a taxpayer successfully carries their burden	6
to produce evidence, thereby rebutting the presumption of correctness applied to	7
agency tax assessments, the burden of production shifts to the department—the party	8
supporting the initial assessment. Id. ¶ 29. There, we held that to carry its burden of	9
production,	10
the department must put forth evidence to show the correctness of its	11
assessment—that is, evidence sufficient to make the correctness of the	12
department’s assessment a question of fact. The imposition of this	13
burden is sensible and pragmatic; it ensures that when the hearing	14
officer decides the case on its merits and acts as a fact-finder, the	15
hearing officer can consider the evidence presented by both parties.	16
Likewise, the existence of this burden means that the department	17
cannot simply rely on the unreliability or incredibility of the taxpayer’s	18
evidence. Instead, the department must produce evidence to justify its	19
assessment. If the department’s evidence creates a question of fact	20
about the correctness of the assessment, it has fulfilled its burden of	21
production, and the case is ripe for the hearing officer to resolve factual	22
disputes and decide the protest on the merits. Ultimately, at the merits	23
stage, the burden of persuasion remains on the taxpayer—the party who	24
bore it at the outset. As a result, if the evidence is in equipoise, the	25
hearing officer should deny the taxpayer’s protest.	26
Id. (emphasis added).	27

15
{24} 	Following the guidance provided in 	Gemini Las Colinas, LLC, in this	1
instance, we hold that once a petitioner has made a prima facie case, a person	2
opposed to the relief sought in the petition cannot fulfill the burden of production	3
simply by raising doubt as to the correctness of the petition. Rather, the person	4
opposed to the relief sought must go forward with adverse evidence showing why	5
the relief should not be granted. In the present context, Alto must produce evidence	6
showing that the construction and operation of the facility “(a) will not meet	7
applicable standards, rules or requirements of the [AQCA] or the federal act; (b) will	8
cause or contribute to air contaminant levels in excess of a national or state standard	9
. . . ; or (c) will violate any other provision of the [AQCA] or the federal act.” See §	10
74-2-7(C). Contrary to Alto’s argument, this holding does not constitute improper	11
burden shifting. Instead, it ensures that if both parties fulfill their burdens of	12
production, the case is ripe for the EIB to resolve factual disputes; the EIB can	13
consider the evidence presented by both parties, and decide the case on its merits.	14
And since, at the merits stage, the burden of persuasion remains on the petitioner, if	15
the EIB finds the evidence is evenly balanced or in equipoise, the EIB should deny	16
the petition.	17
{25} 	We pause to clarify that the EIB need not deny an applicant’s permit	18
application simply because it concludes that the person opposed to the relief sought	19
has fulfilled their burden of production. The EIB, in resolving factual disputes, may	20

16
make credibility determinations about the evidence before it. See Skowronski v. N.M.	1
Pub. Educ. Dep’t, 2013-NMCA-034, ¶ 47, 298 P.3d 469 (“[T]he possibility of	2
drawing two inconsistent conclusions from the evidence does not prevent an	3
administrative agency’s finding from being supported by substantial evidence.”	4
(internal quotation marks and citation omitted)). However, in such an instance, that	5
the EIB’s analysis ultimately results in relief for the petitioner does not mean that	6
the person opposed to the relief sought did not fulfill their burden of production. See	7
Gemini Las Colinas, LLC, 2023-NMCA-039, ¶ 29 (“If the department’s evidence	8
creates a question of fact about the correctness of the assessment, it has fulfilled its	9
burden of production, and the case is ripe for the hearing officer to resolve factual	10
disputes and decide the protest on the merits.”).	11
{26} 	Next, we address the requirements for the EIB to produce a reviewable final	12
order. Regulation 20.1.2.403(B)(1) of the New Mexico 	Administrative Code	13
explicitly requires that the EIB’s final order “contain findings of fact, conclusions of	14
law, [and] an order based on the findings and conclusions.” (Emphasis added.) This	15
is important “because our review is of an administrative, rather than a judicial,	16
decision, [and] we will take care not to inappropriately tread on the executive	17
branch’s functions by looking for a factual or legal basis to support an agency’s	18
decision that is not stated by the agency as the underlying reason for its decision.”	19
Gila Res. Info. Project v. N.M. Water Quality Control Comm’n, 2005-NMCA-139,	20

17
¶ 34, 138 N.M. 625, 124 P.3d 1164. “The Legislature has recognized that	1
administrative agencies must provide written factual and legal bases for their	2
decisions.” 	Id. 	¶ 37; 	see, e.g., NMSA 1978, § 39-3-1.1(B)(1) (1999). “This	3
recognition 	undoubtedly 	stems 	from 	not 	only 	the 	concepts 	of 	fairness 	and	4
transparency in administrative proceedings, but also from the difficulty in our	5
conducting effective and meaningful statutorily prescribed review.” Gila Res. Info.	6
Project, 2005-NMCA-139, ¶ 37; see also Atlixco Coal. v. Maggiore, 1998-NMCA-	7
134, ¶ 19, 125 N.M. 786, 965 P.2d 370 (“[I]n a formal, adjudicatory proceeding the	8
decision[ ]maker must rule on the material issues in dispute in a manner that is	9
sufficient to permit meaningful appellate review.”). Thus, on remand, EIB’s order	10
must include findings that explain why the evidence does or does not meet the	11
burden of production to show that the permit should be granted or denied, see § 74-	12
2-7(C), or if both parties meet the burden of production, how EIB evaluated the	13
evidence presented and on what basis EIB made its decision for one party or the	14
other. In order to appropriately cabin our review of administrative proceedings, this	15
Court must be able to determine the basis for the EIB’s decision, and to ascertain	16
whether the EIB understood and applied the parties’ respective evidentiary burdens	17
as set forth in this opinion.	18

18
CONCLUSION	1
{27} 	We reverse the EIB’s final order and remand this case with instructions that	2
the EIB conclude that it has jurisdiction to consider whether the AP-42 emissions	3
factor for public paved roads reflected actual conditions at Roper’s concrete batch	4
plant, apply the evidentiary burdens as set forth herein, and articulate the basis for	5
its decision in its written final order in accordance with this opinion.	6
{28} 	IT IS SO ORDERED.	7
__________________________________	8
GERALD E. BACA, Judge	9
WE CONCUR:	10
___________________________________	11
SHAMMARA H. HENDERSON, Judge	12
___________________________________	13
KATHERINE A. WRAY, Judge	14