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

• Decision Date: 23 August 1976
• Docket Number: No. 27093,27093
• Citation: 191 Colo. 463,553 P.2d 800
• Parties: , 6 Envtl. L. Rep. 20,754 LLOYD A. FRY ROOFING COMPANY, a corporation, Plaintiff-Appellant, v. The STATE of Colorado DEPARTMENT OF HEALTH AIR POLLUTION VARIANCE BOARD, and their successors in office from time to time, et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 800

553 P.2d 800

191 Colo. 463, 6 Envtl. L. Rep. 20,754

LLOYD A. FRY ROOFING COMPANY, a corporation, Plaintiff-Appellant, v. The STATE of Colorado DEPARTMENT OF HEALTH AIR POLLUTION VARIANCE BOARD, and their successors in office from time to time, et al., Defendants-Appellees.

No. 27093.

Supreme Court of Colorado, En Banc.

Aug. 23, 1976.

Rehearing Denied Sept. 13, 1976.

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

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., David K. Rees, Gene A. Lucero, Gregory J. Hobbs, Jr., Asst. Attys. Gen., denver, for defendants-appellees.

Michael L. Gilbert, Denver, for The Globeville Civic Assn.

ERICKSON, Justice.

On appeal, the appellant, Lloyd A. Fry Roofing Company, Inc. (hereinafter designated as Fry Roofing Company), challenges a district court order which imposed a fine and an injunction against the appellant in accordance with the 'enforcement provisions' of the Air Pollution Control Act of 1970. Section 25--7--101, Et seq., C.R.S.1973. ¹ We affirm in part, reverse in part, and remand with directions.

Hopefully, this appeal marks the end of an uncommonly lengthy and hotly contested case. This case was commenced nearly seven years ago when the Colorado State Department of Health issued a cease and desist order directing Fry Roofing Company to cease emitting air contaminants from its plant. The order was issued pursuant to 1967 Perm.Supp., C.R.S.1963, 66--29--10. ² Fry Roofing Company responded by requesting a variance from the enforcement of the emission control laws. See 1967 Perm.Supp., C.R.S.1963, 66--29--11. ³ This request resulted in an automatic stay of enforcement of the cease and desist order, 1967 Perm.Supp., C.R.S.1963, 66--29--10. ⁴ In July, 1970, the Colorado Air Pollution Variance Board denied the request for a variance. ⁵ Thereafter, Fry Roofing Company sought review in the district court pursuant to 1971 Perm.Supp., C.R.S.1963, 66--31--17. ⁶ Fry Roofing Company challenged the constitutionality of the Air Pollution Control Act of 1970 and the actions of the variance board. Another automatic stay of enforcement was provided by the terms of the Air Pollution Control Act, 1971 Perm.Supp., C.R.S.1963, 66--31--17(1). On May 7, 1971, the district court upheld the actions of the variance board and found the Act to be constitutional.

The district court decision was then appealed to this court. Fry Roofing Company sought a stay of execution for purposes of appeal, and on November 22, 1971, the district court entered the following order:

'Pursuant to Rule 62(c) of the Colorado Rules of Civil Procedure, this stay of execution pending appeal, is conditioned upon plaintiff posting a Twenty-Five Thousand Dollar ($25,000.00) bond, and if the Supreme Court ultimately affirms the decision of the Air Pollution Variance Board and this court, the defendants may request that the civil penalty provided in Section 66--31--19, Air Pollution Control Act of 1970 be assessed against the plaintiff for any violation of the emission standards from the date of this motion.'

In our subsequent decision, Lloyd A. Fry Roofing Company v. State Department of Health Air Pollution Variance Board, supra, we affirmed the decision of the district court and remanded the case to that court for further proceedings. Thereafter, the State of Colorado sought to enforce the October 1969 cease and desist order by filing a motion for injunction and civil penalty in the district court. This motion is permissible in the event of a violation of a final cease and desist order which is not subject to a stay pending judicial review. 1971 Perm.Supp., C.R.S.1963, 66--31--18 and 19. ⁷ The motion was later amended and retitled a petition for enforcement of final cease and desist order. Three petitioners joined in the motion. They are the appellees: the State of Colorado Department of Health Air Pollution Variance Board; the State of Colorado Air Pollution Control Commission; and the State of Colorado Department of Health Division of Administration. Globeville Civic Association is an unincorporated citizen group whose members reside in the Globeville area of Denver and whose homes are in the proximity of the Fry Roofing Company plant.

The motion charged violations of a 20% Opacity standard occurring after the May 7, 1971 decision of the district court. During the pendency of Fry Roofing Company's appeal for review of the variance board's decision, the air pollution control commission, pursuant to its lawfully delegated authority, adopted a visible emission regulation prescribing a 20% Opacity standard which became effective March 15, 1971. ⁸ The commission's emission control regulation No. 1--I.A.1 provided:

'No person shall emit or cause to be emitted into the atmosphere, for any single source of emission whatsoever, any air contaminant for a period or periods aggregating more than three minutes in any 60 consecutive minutes which is of a shade or density as to obscure an observer's vision to a degree in excess of 20% Opacity.'

On December 9, 1971, the commission deleted the three-minute-per-hour exemption from Emission Control Regulation No. 1--I.A.1, but the 20% Opacity standard remained in effect. The new Regulation No. 1--I.A.1 set forth:

'No person shall emit or cause to be emitted into the atmosphere, from any air contamination source of emission whatsoever, any air contaminant which is of such a shade or density as to obscure an observer's vision to a degree in excess of 20% Opacity.'

The petition for enforcement of the final cease and desist order charged separate violations of air quality standards by Fry Roofing Company under both the above regulations. The case went to trial before a jury, and on June 25, 1975, the jury returned a special verdict finding that the air contaminant emissions from the Fry Roofing Company plant exceeded the applicable 20% Opacity standard on each of 83 days from July 8, 1971, through June 5, 1975. The court assessed a civil penalty of $41,500 against the appellant and entered an order enjoining the appellant from operating its plant without installing an air pollution control device approved by the State Board of Air Pollution. The trial court adopted the jury's findings as its own in the injunction portion of the action.

The 83 violations were observed by qualified smoke inspectors from the state health department. ⁹ The observations were recorded on report forms, each of which supported a violation of the 20% Opacity standard. ¹⁰ The observations all related to the roofing company's north stack, except for one violation which was tied to the asphalt preheater pot.

I. Civil or Criminal Proceeding

Fry Roofing Company contends that the civil money penalties assessed against it pursuant to section 25--7--119, C.R.S.1973, are penal in effect and require the procedural safeguards of a criminal proceeding. We do not agree. The legislative intent to impose civil rather than criminal penalties for violation of air pollution control standards is clear from the history of the 1970 Air Pollution Control Act. The original Air Pollution Control Act, passed in 1963, contained no enforcement provisions, but only directed the state board of health to conduct studies on air pollution and to develop air quality standards. C.R.S.1963, 66--24--1 Et seq. In 1966, the legislature provided for enforcement of air quality standards by means of an injunction provision. 1967 Perm.Supp., C.R.S.1963, 66--29--14. Additionally, the legislature made violation of certain emission standards a 'misdemeanor' punishable by a maximum fine of $100 per day. 1967 Perm.Supp., C.R.S.1963, 66--29--15. ¹¹ See also 1969 Perm.Supp., C.R.S.1963, 66--29--15.

In 1970, the Air Pollution Control Act was amended to provide that the task of promulgating ambient air quality standards and emission control regulations should be delegated to the air pollution control commission. 1971 Perm.Supp., C.R.S.1963, 66--31--7. Additionally, the monetary penalty section was redesignated as a civil penalty section rather than as a criminal penalty section. 1971 Perm.Supp., C.R.S.1963, 66--31--19. The redesignation of the enforcement section is consistent with the delegation of power to the administrative agency. The express language of the new enforcement provisions belies any contention that the legislature intended this section to effect criminal rather than civil penalties. In view of the clear expression of legislative intent, we need not apply the criteria set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), for determining whether sanctions are penal or regulatory in nature. ¹² That civil penalties may be enacted to enforce observance of a legislative policy is a principle too well established to require discussion. See, for example, Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Oceanic Steam Navigation Co. v. Stranahan,214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013 (1909); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 518 F.2d 990 (5th Cir. 1975), Appeal docketed, No. 75--746, 5th Cir., Nov. 21, 1975; Frank Irey, J., Inc. v. Occupational Safety and Health Review Comm'n, 519 F.2d 1200 (3d Cir. 1974); United States v. J. B. Williams Co., Inc., 498 F.2d 414 (2d Cir. 1974).

II. Assessment of the Civil Penalty by the Court

The state agreed to Fry Roofing Company's demand for a jury trial, although a jury trial was not required as a matter of law. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969); See also Murray v. District Court, Colo., 539 P.2d 1254 (1975); C.R.C.P. 38(a) and 39(c). The jury tried the disputed issues of fact, but the court determined the amount of the civil penalty. Section 25--7--119(1)...