State v. Lloyd A. Fry Roofing Co.

• Citation: 9 Or.App. 189,495 P.2d 751
• Parties: , 4 ERC 1116, 51 A.L.R.3d 1007 STATE of Oregon, Respondent, v. LLOYD A. FRY ROOFING COMPANY, a corporation, Appellant.
• Decision Date: 13 June 1972
• Court: Court of Appeals of Oregon

Page 751

495 P.2d 751

9 Or.App. 189, 4 ERC 1116, 51 A.L.R.3d 1007

STATE of Oregon, Respondent, v. LLOYD A. FRY ROOFING COMPANY, a corporation, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 2, 1971.

Decided April 7, 1972.

Rehearing Denied May 2, 1972.

Review Granted June 13, 1972.

James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were McColloch, Dezendorf, Spears & Lubersky, and Herbert H. Anderson, Portland.

Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., ^* and FORT and THORNTON, JJ.

THORNTON, Judge.

Defendant corporation was indicted on four counts of air pollution in violation of the rules of the Columbia-Willamette Air Pollution Authority (hereinafter referred to as CWAPA) and ORS 449.990(19). ¹

In a second indictment returned two months later defendant was charged with four additional counts of the same offense. The two indictments were tried separately, one by the court without a jury, and the other with a jury. ² Defendant was found guilty on all charges. Defendant's appeals from the resulting two judgments have been consolidated in this court.

On appeal defendant contends that the two trial judges erred:

(1) In upholding the constitutionality of the administrative rule of CWAPA prohibiting air pollution.

(2) In failing to sustain defendant's objection to the admissibility of the testimony of the state's witnesses with reference to alleged air pollution incidents. That even if admissible, such testimony was insufficient.

(3) In denying defendant's motion for acquittal on the ground that the state and CWAPA had failed to follow mandatory administrative procedures prior to instituting criminal prosecution.

Defendant also contends that the court in the jury case erred in failing to instruct fully on the elements of the crime and in giving instructions allowing the jury to convict on the basis of the statutory presumption of intent.

Constitutionality of the Administrative Rule

The CWAPA air purity standard rule which defendant was accused of violating provided: ³

'(a) A person shall not discharge into the atmosphere from any single source of emission whatsoever any air contaminant for a period or periods aggregating more than three minutes in any one hour * * * which is:

'* * *

'(2) Of such opacity as to obscure an observer's view to a degree equal to or greater than does smoke as dark or darker in shade as that designated as No. 2 on the Ringelmann Chart.

'* * *.' Section 2--2.1(a)(2).

Since many of the issues raised on appeal revolve around the meaning of this rule, we begin with an explanation of it. We also at this point consider defendant's constitutional challenges to the validity of the rule.

Section 2--2.1(a)(2) of CWAPA's rules is concerned with only one Visual characteristic of emissions such as smoke. (Other sections of CWAPA's rules, not here involved, deal with the other characteristics of smoke, such as content of possibly dangerous gases, odor, etc.) More specifically, Section 2--2.1(a)(2) regulates the degree to which smoke obscures an observer's view of the background, such as the sky or Mt. Hood, which except for the smoke, would otherwise be visible.

The standard device for measuring the degree to which smoke obscures the background is known as the Ringelmann Chart, which we have previously described in detail. See, City of Portland v. Fry Roofing Co., 3 Or.App. 352, 472 P.2d 826, Sup.Ct. review denied (1970). No. 2 on the Ringelmann Chart, referred to in Section 2--2.1(a)(2), means 40 per cent or more of the background is obscured.

Another provision of CWAPA's rules, not directly involved in these cases, forbids emissions into the air for more than three minutes per hour which are

'As dark or darker in shade as that designated as No. 2 on the Ringelmann Chart, as published by the United States Bureau of Mines in Information Circular 8333 dated May 1967 * * *.' Section 2--2.1(a)(1).

Section 2--2.1(a)(2), upon which these prosecutions are based, immediately follows this provision. The rules are organized in this manner because the Ringelmann Chart itself is only used for measuring black and/or gray smoke. ⁴ For emissions of other colors, such as the white smoke at defendant's plant, the Ringelmann Chart itself is not used to evaluate obstruction of the background, but the standards of the Chart are incorporated into the rule. In other words, to paraphrase Section 2--2.1(a)(2): it is illegal to emit smoke for more than three minutes in one hour that obscures an observer's view of 40 per cent or more of the background behind the plume.

Our explanation of the rule in question could stop at this point were it not for the term 'opacity' used in Section 2--2.1(a)(2) of CWAPA's rules; many of defendant's arguments concern this term. Technically, opacity means want of transparency or the degree to which transmitted light is obscured. Opacity is judged in the field during air pollution work by the extent to which an observer's view is obscured, i.e., a smoke reader makes his evaluation of opacity on the basis of the amount of background that he cannot see through an emission.

For black or gray smoke, opacity can be measured with a Ringelmann Chart. Other smoke is evaluated through a process referred to in the record as 'equivalent opacity.' This simply means that white smoke which obscures more than 40 per cent of the background is in violation of CWAPA's rules, because it is equivalent to smoke as dark or darker in shade as that designated as No. 2 on the Ringelmann Chart.

'Opacity' is defined in CWAPA's rules as

'* * * the degree to which an emission reduces transmission of light and obscures the view of an object in the background.' Section 2--1.1(v).

Defendant contended that there is not necessarily any correlation between the 'degree to which an emission reduces transmission of light' and the degree to which an emission 'obscures the view of an object in the background.' As we interpret the rules in question, however, the two quoted passages are merely two different ways of expressing the same concept--the degree to which an observer's view is obscured.

Defendant argues Section 2--2.1(a)(2) is 'so vague and arbitrary as to violate constitutional standards controlling the validity of criminal legislation.' We have previously upheld the constitutionality of an identically worded section of the Portland Air Quality Control Code. City of Portland v. Fry Roofing Co., supra.

To distinguish our prior decision, defendant now centers his constitutional attack on the concept of 'equivalent opacity,' discussed above. Defendant states this argument as follows:

'* * * The evidence is undisputed * * * that transmission of light and background visibility are not related factors * * * and that 'equivalent opacity' considers only obscuration of background visibility. In short, equivalent opacity measures only one factor of a definition which requires that two be considered.'

Legislative action is always supported by a strong presumption of constitutionality, and that presumption extends to decisions of administrative bodies exercising legislative powers. Pacific States Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853 (1935); Pacific Tel. & Tel. Co. v. Wallace, 158 Or. 210, 75 P.2d 942 (1938). Administrative rules, like statutes, should be interpreted, is possible, in such a way as to sustain their constitutionality. Pacific States Co. v. White, supra; State v. Combs, 169 Or. 566, 130 P.2d 947 (1942). As discussed above, we interpret CWAPA's definition of opacity, that is, reduction of transmitted light and obscuration of background, as stating the same concept in two ways. This seems to have been the agency's clear intent. As so interpreted, we hold the agency rules, including the concept of equivalent opacity upon which they are based, to be constitutional. ⁵

Was the State's Main Evidence Admissible?

The evidence that defendant violated Section 2--2.1(a)(2) consisted of the testimony and field reports of two smoke readers employed by CWAPA, Mr. Bispham and Mr. McDonald, who had monitored the plume coming from the smokestack at defendant's plant. Defendant assigns as error the admission of this evidence, arguing it was incompetent because the two smoke readers did not possess sufficient qualifications to testify concerning obscuration of background caused by the emissions from defendant's plant. Also, as a related point, defendant argues their testimony was insufficient to sustain the convictions.

In C--56168 Mr. Bispham testified concerning observations on July 29 and August 6, 1969, and Mr. McDonald testified concerning observations on July 30 and August 4, 1969. In C--56867 Mr. Bispham testified about his smoke readings on all four dates involved, September 5, 10, 15 and 24, 1969. Their testimony and reports were as follows:

                                                          Minutes 80%
                                                           or More of
                             Minutes of      Minutes of    Background
                Date      Observation 6  Violation   Obscured 7
                --------  -----------------  ----------  --------------
                July 29          75          69 3/4      67 1/2
                July 30          75          75          73 3/4
                August 4         75          74          66 3/4
                August 6         75          75          73
                Sept. 5          75          54 3/4       9 3/4
                Sept. 10         75          69 3/4      24 1/4
                Sept. 15         75          73          19 1/2
                Sept. 24         75          69 1/2      28 1/2
                

As we view the testimony, the two smoke readers were not offered as expert witnesses in the sense that they were asked to express opinions. Rather the question is whether they were competent to testify as to the facts of their observations of the degree to which the background was obscured...