Climax Chemical Co. v. New Mexico Environmental Improvement Board

738 P.2d 132, 106 N.M. 14
CourtNew Mexico Court of Appeals
DecidedMay 5, 1987
Docket8896
StatusPublished
Cited by3 cases

This text of 738 P.2d 132 (Climax Chemical Co. v. New Mexico Environmental Improvement Board) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Climax Chemical Co. v. New Mexico Environmental Improvement Board, 738 P.2d 132, 106 N.M. 14 (N.M. Ct. App. 1987).

Opinion

OPINION

BIVINS, Judge.

Appellant, Climax Chemical Company (Climax), appeals from the adoption of revised Liquid Waste Disposal Regulations by the state Environmental Improvement Board (Board) pursuant to NMSA 1978, Section 74-l-8(A)(3) (Repl.1986). NMSA 1978, Section 74-l-9(H) (Repl.1986) gives any person who is or may be affected by a regulation adopted by the Board a right of appeal to this court. The parties agree Climax is such a person since it maintains two septic systems, each with capacities within the reach of the regulations. We granted the New Mexico Environmental Improvement Division’s (Division) motion to be added as a party and to brief the issue presented.

While conceding proper enactment of the regulations, Climax challenges certain provisions as unconstitutionally vague. It claims the regulations fail to provide specific standards and, therefore, confer unbridled discretion and permit arbitrary application. Because of these shortcomings, Climax asserts abuse of discretion. Since Climax has not been denied a permit to install a new liquid waste disposal system or to modify an existing one, the appeal really presents a pre-enforcement facial challenge to the regulations. We, therefore, hold only that the regulations challenged are not facially vague. In doing so, we leave open the question of whether the regulations may be successfully challenged in their application.

The regulations require a person to obtain a permit issued by the Division before installing a new liquid waste system or modifying an existing one. Once an applicant files for a permit, the Division is required, within ten working days of receipt, to either grant the permit, grant it subject to conditions, or deny it. “A person who violates any regulation of the board is guilty of a petty misdemeanor.” NMSA 1978, § 74-1-10 (Repl.1986). The regulations provide specific requirements as to lot size, setback and clearance. Climax has no quarrel with the permit procedure or the specific requirements. What it objects to is the following provision:

[Section 1-201] D. If the division finds that specific requirements in addition to or more stringent than those provided in Section 2-200 of these regulations are necessary to prevent a hazard to public health or the degradation of a body of water, the division may issue a permit conditioned on those more stringent or additional specific requirements.

Climax also challenges the phrase “hazard to public health,” defined in Section 1-102(R), as: “the indicated presence in water or soil of parasite, bacterial, viral, chemical or other agents under such conditions that they may adversely impact human health[.]” It does not challenge the phrase “degradation of a body of water,” since the definition of that term refers to specific recognizable standards established by governmental agencies. See § 1-103(H).

Climax asserts that the terms “under such conditions,” “necessary to prevent a hazard to public health” and “in addition to or more stringent than” are unconstitutionally vague, do not give sufficient notice of the requirements for compliance, and constitute an abuse of discretion by the Board for failing to set definite standards and for allowing arbitrary decision making on an ad hoc basis.

Climax relies on Bokum Resources Corp. v. New Mexico Water Quality Control Commission, 93 N.M. 546, 603 P.2d 285 (1979). In Bokum, the supreme court ruled that the definition of “ ‘toxic pollutants/ ” which was determined “ ‘on the basis of information available to the director or the commission/ ” was unconstitutionally vague on its face. Id. at 552, 603 P.2d at 291. Climax argues that the regulations in question are likewise vague.

Climax also contends the regulations allow the Division to decide arbitrarily when to impose stricter standards without notice of the situations under which such stricter standards might be imposed. To support this contention, Climax cites Safeway Stores, Inc. v. City of Las Cruces, 82 N.M. 499, 484 P.2d 341 (1971), a case that dealt with the transfer of a liquor license. Although the prospective transferee met all statutory requirements, the city maintained it had absolute discretion to deny the permit. The court disagreed and ruled that the city’s discretion extended only to determining whether statutory guidelines were met. Climax contends that the liquid waste regulations confer similar unbridled discretion on the Division and cannot stand under Safeway Stores.

The Board argues that the regulations set forth specific standards for the additional or more stringent conditions via the definitions in Section 1-103. The Board distinguishes Bokum, arguing that no reference is made in the challenged regulations to information or standards outside of its terms. Rather, the Board contends that the definitions in Section 1-103 define with reasonable certainty the criteria necessary to impose additional or more stringent requirements. It argues that because the parties receive notice of additional requirements before they receive a permit, they have ample opportunity to avoid potential violations. The Board relies on Kerr-McGee Nuclear Corp. v. New Mexico Water Quality Control Commission, 98 N.M. 240, 647 P.2d 873 (Ct.App.1982), which held that the regulations (as revised since Bokum ), were not vague. The court in Kerr-McGee reasoned that determinations of prohibited conduct would be made before a discharge plan was approved and, thus, the discharger would have notice of potential violations. As in Kerr-McGee, the Board and the Division argue that the regulations provide detailed provisions for a hearing for any person dissatisfied with the additional or more stringent requirements imposed. See § 1-203(A) & (B). While the regulations do not expressly provide for an appeal to a court, we assume that a person dissatisfied with the result of the hearing can seek judicial review.

We are not entirely persuaded by the Board’s and the Division’s arguments that the permit procedure and subsequent appeal process will adequately provide advance notice. Counsel for the Board and the Division conceded at oral argument that no national standards exist for establishing a “hazard to public health.” If no standards exist, then review of the regulations could be hindered for lack of objective guidance, unlike in Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 102 N.M. 8, 690 P.2d 451 (Ct.App.1984), where National Ambient Air Quality Standards guided the court in determining the definition of “injury to health.” Our concerns, which we view as premature, do not prevent us from denying Climax’s facial challenge of vagueness. In so holding, we rely neither on Bokum nor Kerr-McGee.

“The vagueness doctrine is based on notice.” State ex rel. Health & Social Servs. Dep’t v. Natural Father, 98 N.M. 222, 225, 598 P.2d 1182, 1185 (Ct.App.1979).

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Bluebook (online)
738 P.2d 132, 106 N.M. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/climax-chemical-co-v-new-mexico-environmental-improvement-board-nmctapp-1987.