Espinosa v. Roswell Tower, Inc.

Decision Date06 December 1995
Docket NumberNo. 14417,14417
PartiesJudith M. ESPINOSA, in her official capacity as Secretary of the New Mexico Environment Department, and the New Mexico Environment Department, Plaintiffs-Appellees/Cross-Appellants, v. ROSWELL TOWER, INC., Ray Bell, Jack Lovelady, Tom Lancaster, Leonard Talbert, Earnest Newlin, and Jack Lemmons, d/b/a Jack's Tractor Works, Defendants-Appellants/Cross-Appellees.
CourtCourt of Appeals of New Mexico
OPINION

ALARID, Judge.

1. Roswell Tower, Inc. (RTI) appeals, and the New Mexico Environment Department (NMED) cross-appeals, from penalties and costs awarded against RTI for nuisance and regulatory and statutory violations resulting from asbestos removal at the Petroleum Building (the building) in Roswell, New Mexico.

2. On appeal, Appellants challenge all penalties imposed and the sufficiency of the evidence to support findings that justify the penalties. On cross-appeal, NMED challenges the amount of statutory penalties imposed, and certain findings relevant to the issue. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

3. NMED's complaint sought damages, punitive damages, civil statutory penalties, and injunctive relief for asbestos removals and disposals. Appellants include the owner of the building, RTI, as well as RTI's chief executive officer Ray Bell (Bell) and the building's manager Leonard Talbert (Talbert) during the periods at issue: from January 1, 1982 through August 23, 1984, and from August 24, 1984 through June 5, 1990 (the relevant periods).

4. NMED learned of Appellants' activities when NMED responded to suspected asbestos violations reported by a building tenant on June 6, 1990. Further investigation revealed that, since 1982 when RTI acquired ownership of the building, RTI had, under Talbert's supervision, repeatedly knocked out and replaced ceilings throughout the building. NMED also discovered that Appellants had dumped some ceiling debris near an abandoned city landfill (the old city landfill), located near a residential neighborhood and a baseball field in an area frequented by the public. Although NMED unsuccessfully sought to compel Appellants to dispose properly of the asbestos-containing debris, the complaint encompasses violations at this site.

5. The time span is divided into two relevant periods to distinguish between the controlling law. August 24, 1984 marks the effective date of NMED Air Quality Control Regulation 751 (AQCR 751), adopted under the authority of the Air Quality Control Act (AQCA), NMSA 1978, §§ 74-2-1 to -17 (Repl.Pamps. 1990 & 1993). See § 74-2-6(F) (effective date of regulations). AQCR 751 adopted by reference the asbestos national emission standards for hazardous air pollutants (the asbestos NESHAP) promulgated by the United States Environmental Protection Agency (EPA), 40 C.F.R. Part 61, as amended in the Federal Register through December 9, 1983. As federal law, the asbestos NESHAP applied in New Mexico during the first relevant period ending on August 23, 1984.

6. According to the judgment, Appellants conducted over seventy asbestos removal and disposal jobs during the relevant periods: over ten removals between January 1, 1982 and August 23, 1984, in violation of the asbestos NESHAP and nuisance laws at a penalty of $10,000; and over sixty removals between August 24, 1984 and June 5, 1990, in violation of AQCR 751, the asbestos NESHAP, and nuisance laws at a penalty of $60,000. Appellants were also found liable for dumping at the old city landfill, and fined $6,837, three times NMED's removal costs. Charges against all Appellants except RTI, Bell, and Talbert were dismissed with prejudice.

ISSUES ON APPEAL

7. Appellants challenge both the factual and legal bases of the damages awarded. Because the penalties are supported by the facts, viewed in a light most favorable to the judgment, and are consistent with law, we affirm the issues raised on appeal. See Baxter v. Gannaway, 113 N.M. 45, 48, 822 P.2d 1128, 1131 (Ct.App.) (standard of review), cert. denied, 113 N.M. 16, 820 P.2d 1330 (1991); Naranjo v. Paull, 111 N.M. 165, 173, 803 P.2d 254, 262 (Ct.App.1990) (award of punitive damages appropriate when there was no substantial doubt about the legal basis for the award).

I. Common-Law Public Nuisance

8. The trial court awarded a $10,000 judgment against Appellants for the "public nuisance" of asbestos removals in violation of the asbestos NESHAP. Appellants claim that the trial court erred because (1) penalties can only be imposed when authorized by statute, and (2) statutory nuisance requires knowledge and does not authorize civil penalties. See NMSA 1978, § 30-8-1 (Repl.Pamp.1994) (public nuisance). Because the judgment made no finding about knowledge, Appellants contend that the public nuisance findings and penalties must be reversed. We do not agree.

9. Although NMED concedes that statutory public nuisance requires knowledge, NMED claims that the judgment relates to common-law nuisance, as charged in the complaint, which requires no element of knowledge. See City of Albuquerque v. State ex rel. Village of Los Ranchos de Albuquerque, 111 N.M. 608, 612, 808 P.2d 58, 62 (Ct.App.1991), cert. denied, 113 N.M. 524, 828 P.2d 957 (1992). The Environmental Improvement Act (EIA) bestows upon NMED responsibility for air quality management, NMSA 1978, § 74-1-7(A)(4) (Repl.Pamps.1990 & 1993), and authorizes NMED to exercise all powers reasonable and necessary to accomplish its statutory duties. NMSA 1978, § 74-1-6(H) (Repl.Pamps.1990 & 1993), -6(I) (Supp.1994). Because the EIA did not repeal by implication common-law remedies for nuisance, Gonzalez v. Whitaker, 97 N.M. 710, 714, 643 P.2d 274, 278 (Ct.App.1982), we concur with NMED's reading of the judgment.

10. A nuisance in fact is distinguished from a nuisance per se in that a nuisance in fact may become a nuisance by reason of its circumstances, location, or surroundings, whereas a nuisance per se is always a nuisance regardless of these factors. City of Albuquerque, 111 N.M. at 612, 808 P.2d at 62. An activity conducted or maintained contrary to law may be a public nuisance per se when the activity unreasonably interferes with a right common to the general public. Cf. id. at 615, 808 P.2d at 65 (absent other illegality, lawful authority to conduct an activity provides a valid defense to the claim that the activity constitutes nuisance per se); Equitable Gen. Ins. Co. v. Silva, 99 N.M. 371, 373, 658 P.2d 446, 448 (Ct.App.) (violation of statute enacted for protection of public is negligence per se), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983).

11. Emissions of hazardous substances into the environment have constituted nuisances per se in other jurisdictions. See State v. Fermenta ASC Corp., 160 Misc.2d 187, 608 N.Y.S.2d 980, 985 (Sup.Ct.1994) (release of hazardous waste is nuisance per se); Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982) (pollution of water is nuisance per se). According to trial testimony, this case concerns the worst air pollution to have ever occurred in New Mexico.

12. We determine that violations of the asbestos NESHAP created a public nuisance per se. Because public nuisance per se depends upon the degree of violation and the interests invaded, we conclude that knowledge that an activity violates the law is not an essential element of the cause of action in this case. See Fermenta, 608 N.Y.S.2d at 988 (person may be liable for public nuisance irrespective of fault).

II. Punitive Damages

13. Nuisance law in our state has largely evolved in the context of injunctive relief. See, e.g., State ex rel. N.M. Water Quality Control Comm'n v. City of Hobbs, 86 N.M. 444, 446, 525 P.2d 371, 373 (1974) (negligent operation of sewer plant as public nuisance); Town of Clayton v. Mayfield, 82 N.M. 596, 485 P.2d 352 (1971); Koeber v. Apex-Albuq Phoenix Exp., 72 N.M. 4, 380 P.2d 14 (1963).

14. Other jurisdictions have (1) determined that the state's interest in its air, land, and water supports a nuisance claim for monetary damages, see Selma Pressure Treating Co. v. Osmose Wood Preserving Co. of Am., 221 Cal.App.3d 1601, 271 Cal.Rptr. 596, 605-06 (1990) (list of cases from around the country allowing such recovery), and (2) recognized the state's right to seek punitive damages for common-law public nuisance based on the need for deterrence and the inadequacy of actual or nominal damages. See National Audubon Soc'y v. Department of Water, 869 F.2d 1196, 1204 (9th Cir.1988) (state common-law nuisance particularly appropriate to air pollution); State ex rel. Dresser Indus., Inc. v. Ruddy, 592 S.W.2d 789, 793 (Mo.1980) (en banc) (where neither party could cite precedent to deny public authority's right to recover punitive damages for common-law public nuisance, and where public policy furthered by recovery in cases of environmental degradation, award is at discretion of trial court); cf. State ex rel. Pollution Control Coordinating Bd. v. Kerr-McGee Corp., 619 P.2d 858, 861 (Okla.1980) (state could seek punitive damages for water pollution under common-law negligence theory in addition to statutory remedies). "[P]unitive damages clearly are rationally connected to the public policy of protecting public health and the environment." United States v. Hooker Chems. & Plastics Corp., 748 F.Supp. 67, 79 (W.D.N.Y.1990) (federal court applying state law denied the defendant's motion to dismiss punitive damage claim for common-law public nuisance).

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2 cases
  • New Mexico v. General Elec. Co., CIV 99-1118 BSJ/KBM.
    • United States
    • U.S. District Court — District of New Mexico
    • April 6, 2004
    ... ... Haas Group, Inc., 953 F.2d 1235, 1237, 1238-39 (10th Cir.1992) (the doctrine of res ... are available for common-law public nuisance, 113 citing Espinosa v. Roswell Tower, Inc., 121 N.M. 306, 910 P.2d 940 (Ct.App.1995): ... ...
  • Titus v. City of Albuquerque
    • United States
    • Court of Appeals of New Mexico
    • May 3, 2011
    ...identifies the consequences of knowingly committing a public nuisance, see Espinosa v. Roswell Tower, Inc., 1996–NMCA–006, ¶ 9, 121 N.M. 306, 910 P.2d 940 (observing that statutory public nuisance requires knowledge whereas common law nuisance requires no element of knowledge), it does not ......
1 books & journal articles
  • The Perils and Promise of Public Nuisance.
    • United States
    • Yale Law Journal Vol. 132 No. 3, January 2023
    • January 1, 2023
    ...For early cases, see infra notes 242-247 and accompanying text. For more recent cases, see, for example, Espinosa v. Roswell Tower, Inc., 910 P.2d 940, 943-45 (N.M. Ct. App. 1995), which permitted compensatory and punitive-damages claims; United States v. Hooker Chemicals & Plastics Cor......

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