Lloyd A. Fry Roofing Co. v. State Dept. of Health Air Pollution Variance Bd.

• Decision Date: 31 July 1972
• Docket Number: No. 25359,25359
• Citation: 499 P.2d 1176,179 Colo. 223
• Parties: , 4 ERC 1517, 2 Envtl. L. Rep. 20,514 LLOYD A. FRY ROOFING COMPANY, a corporation, Plaintiff-Appellant, v. The STATE of Colorado DEPARTMENT OF HEALTH AIR POLLUTION VARIANCE BOARD, andtheir successors in office from time to time, et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1176

499 P.2d 1176

179 Colo. 223, 4 ERC 1517, 2 Envtl.

L. Rep. 20,514

LLOYD A. FRY ROOFING COMPANY, a corporation, Plaintiff-Appellant, v. The STATE of Colorado DEPARTMENT OF HEALTH AIR POLLUTION

VARIANCE BOARD, andtheir successors in office from

time to time, et al., Defendants-Appellees.

No. 25359.

Supreme Court of Colorado, En Banc.

July 31, 1972.

Rehearing Denied Aug. 21, 1972.

Rothgerber, Appel & Powers, Ira C. Rothgerber, Jr., Denver, for plaintiff-appellant

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for defendants-appellees State of Colo. Dept. of Health Air Pollution Variance Board and State of Colo. Air Pollution Control Comm.

David Foster, Denver, for Colorado Dept. of Public Health.

Robert T. Page, Allan Reiver, Thomas Frank, Denver, for defendants-appellees The Globeville Civic Ass'n, Stapleton Community Buying Club (Inc.), NOD (Inc.), and United Swansea, Inc.

DAY, Justice.

This is an appeal challenging the constitutionality of the Air Pollution Control Act of 1970 (1971 Perm.Supp., C.R.S.1963, 66--31--1 et seq.), the propriety of certain administrative proceedings before the Air Pollution Variance Board, and the failure of the Colorado Air Pollution Control Commission to hold a review.

The proceedings herein were commenced under 1967 Perm.Supp., C.R.S.1963, 66--29--1 et seq. Fry Roofing Company was notified by letter in September of 1969 that it was in violation of the provisions of the Air Pollution Control Act then in effect. In October 1969, the Department of Health issued an order directing Fry to cease emitting air contaminants from its plant. Fry applied to the board for a variance.

The first hearing was held before the board on January 15, 1970. On April 10, 1970, an amended law designated as the 'Air Pollution and Control Act of 1970' became effective. Thereafter, at a hearing on May 7, 1970, Fry agreed that the procedures required by the 1970 Act would govern the proceedings. Two subsequent hearings were had in July. At the conclusion of the July 16 hearing, the variance board denied Fry's request for a variance.

The variance board's written findings, conclusions and decision were entered on August 20, 1970. By letter dated September 9, Fry requested the commission to hold a hearing pursuant to Section 66--31--16(9). The commission refused. Thereafter Fry sought review in the district court and also combined with it a declaratory judgment challenging the constitutionality of the 1970 Act on various grounds. The district court upheld the actions of the commission and the variance board and found the Act constitutional. We affirm.

I.

With regard to the declaratory judgment, Fry first contends that the Act is void because of an alleged lack of adequate legislative standards, and that its provisions contain an unconstitutional delegation of legislative power to the commission. The determinations of these two questions are necessarily interrelated and, more accurately, present but a single question. See Swisher v. Brown, 157 Colo. 378, 402 P.2d 621.

A legislative enactment is presumptively valid, and one who challenges it bears an extremely heavy burden to establish its unconstitutionality beyond a reasonable doubt. See Department of Health v. Owens-Corning Fiberglas Corp., 100 N.J.Super. 366, 242 A.2d 21.

The 1970 Act was enacted under the police power, Section 66--31--2, and it cannot be doubted that control of air pollution is a legitimate subject of legislation thereunder. Department of Health v. Owens-Corning Fiberglas Corp., Supra; People v. International Steel Corp., 102 Cal.App.2d Supp. 935, 226 P.2d 587; City of Miami v. City of Coral Gables, Fla.App., 233 So.2d 7; Board of Health v. New York Cent. R. Co., 4 N.J. 293, 72 A.2d 511; Penn-Dixie Cement Corp. v. City of Kingsport, 189 Tenn. 450, 225 S.W.2d 270.

Also a statute must be read as a whole to ascertain whether adequate standards exist. State Board of Cosmetology v. Maddux, 162 Colo. 550, 428 P.2d 936; See State v. Arizona Mines Supply Co., 107 Ariz. 199, 484 P.2d 619; Department of We set forth in the Appendix quotes from the 1970 Act which we deem pertinent to show the extent of the legislative standards set out in the Act.

Health v. Owens-Corning Fiberglas Corp., Supra.

We apply the test which was set out by the court in Swisher v. Brown, Supra, to determine whether the Act contains adequate standards. In Swisher v. Brown, Supra, it was declared that

'The legislature does not abdicate its function when it describes what job must be done, who must do it, and the scope of his authority.'

Accord, People ex rel. Dunbar v. Giordano, 173 Colo. 567, 481 P.2d 415. This test recognizes that while the legislature may not totally abdicate its legislative authority, it may allow an agency to fill in the details of an enactment. See State v. Arizona Mines Supply Co., Supra. It is impossible for the legislature to be absolutely precise in all fields in which it enters. State v. Arizona Mines Supply Co., Supra; Department of Health v. Owens-Corning Fiberglas Corp., Supra; People ex rel. Dunbar v. Giordano, Supra. The following amplification is quoted from Swisher v. Brown, Supra:

'* * * It is not necessary that the legislature supply a specific formula for the guidance of the administrative agency in a field where flexibility and adaption of the legislative policy to infinitely variable conditions constitutes the essence of the program. The modern tendency is to permit liberal grants of discretion to administrative agencies in order to facilitate the administration of laws dealing with involved economic and governmental conditions. In other words, the necessities of modern legislation dealing with complex economic and social problems have led to judicial approval of broad standards for administrative action, especially in regulatory enactments under the police power. With respect to such types of legislation, detailed standards in precise and unvarying form would be unrealistic and more arbitrary than a general indefinite standard.'

Accord, People ex rel. Dunbar v. Gym of America, Inc., Colo., 493 P.2d 660; Asphalt Paving Co. v. Board of County Commissioners, 162 Colo. 254, 425 P.2d 289.

In the 1970 legislation, the job to be performed is the development and maintenance of a comprehensive program for prevention, control, and abatement of air pollution throughout the entire state, including a program for control of emissions from all significant sources of air pollution, and the promulgation of ambient air goals for the state. The commission is to carry out this task, within the scope of authority and the guidelines set forth in the Act. The scope and guidelines to be followed by the commission in discharging its duties and responsibilities are those which are necessary or appropriate to foster the health, peace, safety, general welfare, convenience and comfort of the people of the state, and which facilitate the enjoyment of nature, scenery, and other resources of the state. Compare People ex rel. Dunbar v. Giordano, Supra. Limitations on the commission are that ambient air standards must contain the items noted in Sections 66--31--7(1)(b) through (d), and the commission must consider the items noted in Sections 66--31--8(1)(b) through (h) in formulating emission control regulations.

Fry stresses the fact that, prior to the enactment of the new Act of 1970, the legislature set out precise air pollution standards in the 1969 law which was repealed. See 1969 Perm.Supp., C.R.S.1963, 66--29--4 and 5. In our view, that change in the law in 1970 demonstrates the fact that there were too many variables to make the 1969 law effective and that precise standards in the area of air pollution enactments are impractical, if not impossible to administer.

Therefore, the legislature specifically noted commission-promulgated regulations may and sometimes must be formulated with regard to the various factors which In cases dealing with other areas of legitimate legislative activity where precision was determined to be impossible for the same or similar reasons noted in Swisher v. Brown, Supra, such broad standards as 'reasonable' and 'necessary' have been found sufficient as standards, although incapable of precise definition. Asphalt Paving Co. v. County Commissioners, Supra; State v. Arizona Mines Supply Co., Supra. It has been said that the term 'air pollution' in itself is a standard, albeit a broad one. Department of Health v. Owens-Corning Fiberglas Corp., Supra.

either constitute, produce, or dispel air pollution, E.g., classifying different types and degrees of air pollution; promulgating regulations applicable to either a part or the whole of the state; describing maximum concerntrations of contaminants that can be tolerated depending on variations in altitude, topography, climate or meteorology; taking into consideration the degree to which any particular type of emission is subject to treatment; and considering the continuous, intermittent, or seasonal nature of the emission to be controlled.

We, therefore, conclude that the standards established in the Air Pollution Control Act of 1970 are not so broad as to result in an improper delegation of legislative authority, and that Fry Roofing Company has failed to meet its burden of overcoming the presumption of validity in this respect.

We next discuss the Fry Company's second argument--a corollary to the delegation question. Fry argues that the statute is so vague as to fail to apprise one of what conduct is necessary to avoid the 'civil penalties' or injunctive relief provided under Sections 66--31--18 and 19. We do not so read the statute. The Act deals only with Future conduct. Cf. People ex rel. Dunbar v. Gym of America, Inc., Supra. Pursuant to Section 66--31--19(1)(b) or Section 66--31--18, neither a civil penalty can be imposed nor an injunction issue until after notice is given of the alleged...