Bokum Resources Corp. v. New Mexico Water Quality Control Commission

• Decision Date: 16 November 1979
• Docket Number: No. 12374,12374
• Citation: 603 P.2d 285,1979 NMSC 90,93 N.M. 546
• Parties: BOKUM RESOURCES CORPORATION, Continental Oil Company, Gulf Oil Corporation, Kerr-McGee Nuclear Corporation, Phillips Petroleum Company, Ranchers Exploration and Development Corporation, United Nuclear Corporation, United Nuclear-Homestake Corporation, United Nuclear-Homestake Partners and Union Carbide Corporation, Petitioners, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Respondent.
• Court: New Mexico Supreme Court

Page 285

603 P.2d 285

93 N.M. 546

BOKUM RESOURCES CORPORATION, Continental Oil Company, Gulf Oil Corporation, Kerr-McGee Nuclear Corporation, Phillips Petroleum Company, Ranchers Exploration and Development Corporation, United Nuclear Corporation, United Nuclear-Homestake Corporation, United Nuclear-Homestake Partners and Union Carbide Corporation, Petitioners, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Respondent.

No. 12374.

Supreme Court of New Mexico.

Nov. 16, 1979.

Peter J. Nickles, Covington & Burling, Washington, D. C., Bruce D. Black, Campbell & Black, Santa Fe, for petitioner Kerr-McGee Nuclear Corp

James G. di Zerega, II, Gulf Mineral Resources Co., Denver, Colo., Watson, Stillinger & Lunt, Santa Fe, for petitioner Gulf Oil Corp.

David Cullen, Houston, Tex., for petitioner Continental Oil Co.

Kenneth Heady, C. J. Roberts, Bartlesville, Okl., for petitioner Phillips Petroleum Co.

G. Stanley Crout, Sunny J. Nixon, C. Mott Woolley, Bigbee, Stephenson, Carpenter & Crout, Santa Fe, for petitioners Bokum Resources Corp., Continental Oil Co., Phillips Petroleum Co., Ranchers Exploration and Development Corp., United Nuclear Corp., United Nuclear-Homestake Partners, United Nuclear-Homestake Corp. and Union Carbide Corp.

Bruce S. Garber, James G. Huber, Weldon L. Merritt, Santa Fe, Rand L. Greenfield, Albuquerque, for respondent.

OPINION

EASLEY, Justice.

After notice and hearing, the New Mexico Water Quality Control Commission (Commission) amended existing regulations and enacted new ones governing the discharge of toxic pollutants that may move into ground water. Bokum Resources Corporation and other plaintiffs (Bokum) appealed to the Court of Appeals. The Court of Appeals affirmed, except for one minor issue. We affirm in part and reverse in part.

The Commission held lengthy hearings, in which Bokum and others participated. There are no complaints about the adequacy of the hearings. However, Bokum attacks the regulations as being vague, arbitrary and capricious and in excess of the law. It is asserted by Bokum that enforcement of the rules will cost the uranium industry in the state approximately $86,000,000.

Bokum raises these issues:

1) the definition of "toxic pollutants" is unconstitutionally vague;

2. the Commission failed to specify its reasons for adopting the regulations;

3. the Court of Appeals has jurisdiction to review the adoption of the "standards" involved;

4. the Commission failed to weigh all of the evidence before adopting the regulations;

5. the Commission exceeded its authority by passing regulations that require water dischargers to bear the burden of proving that no conditions exist which would justify a denial of their permit; and

6. in adopting the regulations and standards, the Commission was not performing a mere "ministerial act".

The facts bearing on each of these issues will be discussed, along with the law, in the order given.

1) Definition of "Toxic Pollutants"

Bokum's most serious complaint is that the definition of "toxic pollutants" in the regulations is unconstitutionally vague. We agree. In addition, we confirm that the judicial doctrine of unconstitutional uncertainty is most perplexing. Collings, Unconstitutional Uncertainty An Appraisal, 40 Cornell L.Q. 195 (1955).

Under Section 3-106(A) and (B) of the Commission's regulations, any person who discharges "toxic pollutants" which may migrate into ground water is required to submit a discharge plan to the Director of the Environmental Improvement Division (Director) for approval. Section 3-109(G)(3) of the regulations prohibits the Director from approving a discharge plan for "the discharge of any water contaminant which may result in toxic pollutants being present in the ground water."

Section 1-101(X) of the regulations defines "toxic pollutants" as:

. . . those water contaminants, or combinations of water contaminants present in concentrations which, upon exposure, ingestion, inhalation or assimilation into humans or other organisms of direct or indirect commercial, recreational or esthetic value, either directly from the environment or indirectly by ingestion through food chains, will, On the basis of information available to the director or the commission, cause death, disease, behavioral abnormalities, genetic mutation, physiological malfunctions or physical deformations in such organisms or their offspring. (Emphasis added.)

Section 74-6-5(P), N.M.S.A.1978 provides that in the event a "toxic pollutant" is discharged, the person discharging it is subject to a fine of not less than $300 per day nor more than $10,000 per day or imprisonment for a period not exceeding one year, or both. In addition, Section 74-6-5(Q) authorizes a civil penalty of up to $5,000 per day.

Bokum claims that subjecting water users to such penalties, when their guilt or innocence may be determined not by what is specified in the regulations but by "information available to the director or the commission," fails to meet the due process requirements of notice. Bokum asserts that water users cannot determine what the regulations command or forbid.

The Court of Appeals held that the definition of "toxic pollutants" constitutes a standard rather than a regulation and that the Court of Appeals has no jurisdiction to review standards. This point is addressed elsewhere in this opinion.

Bokum claims that the definition of "toxic pollutant" leaves the discharger without a discernible standard. At his peril, the discharger must determine which organisms are of "direct or indirect commercial, recreational or esthetic value." Furthermore, the discharger's acts are to be judged, not by what he can read in print about the standards, but by "information available to the director or the commission." The term "available" has an infinite scope. This information, which may be the basis upon which a person could be convicted and sent to jail for one year, may be in the files of the Director or a majority of the Commission members, in the Library of Congress or part of the wisdom of a friendly Curandero, and still be considered "available". The term "information" in the definition of "toxic pollutants" is also limitless. There are no tests provided in the regulation for determining the reasonableness, reliability or scientific accuracy of the "available" information. Conceivably, a person could find himself in jail for violating totally unreasonable requirements, that are supported by crank mail in the Director's files, without the discharger of water having any prior notice or knowledge of the information's nature or availability to the Director.

Most of the cases dealing with the vagueness doctrine construe statutes as opposed to regulations. However, our courts and others apply the same legal principles to both. State v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963); Rainbo Baking Co. of El Paso v. Commissioner of Rev., 84 N.M. 303, 502 P.2d 406 (Ct.App.1972); Agrico Chemical Co. v. State, Etc., Fla.App., 365 So.2d 759 (1978).

The same strict rule of construction that is applied to statutes defining criminal action must be applied to rules enacted by an agency pursuant to statutory authority. Kraus and Bros. v. United States, 327 U.S. 614, 66 S.Ct. 40, 90 L.Ed. 894 (1946).

It is well established that a penal statute or regulation which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law. Balizer v. Shaver, 82 N.M. 347, 481 P.2d 709 (Ct.App.1971); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

In Connally, the United States Supreme Court was construing a statute which provided a penalty for payment of less than " 'the current rate of per diem wages in the locality.' " Id. at 388, 46 S.Ct. at 126. The Court held that the statute contained no ascertainable standard of guilt since it could not be determined with any degree of certainty what sum constituted a current wage in any locality, and that the term "locality" itself was fatally vague and uncertain. The Court stated: "the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another, . . ." Id. at 394, 46 S.Ct. at 128.

In the recent case of Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed. 596 (1979), the United States Supreme Court held the Pennsylvania abortion control act unconstitutionally vague. The act required every person who performed an abortion to make a determination, " 'based on his experience, judgment or professional competence,' " that the fetus is not viable. If the person performing the abortion determines that the fetus "is viable" or that " 'there is sufficient reason to believe that the fetus may be viable,' " he must then exercise the same care to preserve the fetus' life and health as would be required in the case of a fetus intended to be born live. In addition, the person performing the abortion must use that abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique is not necessary to preserve the mother's life or health.

Apparently, the determination of whether the fetus "is viable" is to rest upon the basis of the attending physician's "experience, judgment or professional competence." But the Court held that the subjective language applied to the second condition that activates the duty to the fetus, i. e., whether "sufficient reason to believe that the fetus may be viable" exists, is ambiguous. The Court stated:

It is settled that, as a matter of due process, a criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617 (, 74 S.Ct. 808, 812, 98 L.Ed. 989) (1954) or is so...