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Kerr-McGee Nuclear Corp. v. New Mexico Water Quality Control Comm'n

Citation: 12 ELR 21112
No. No. 5232, 647 P.2d 873/98 N.M. 240, (N.M. Ct. App., 01/19/1982)

The court rules that New Mexico water pollution control regulations defining toxic pollutants in terms of their potential harmful effects are constitutional. The court first rules that the challenged regulation is neither unconstitutionally vague nor an ex post facto law. Although the rule does not set out numerical standards clearly delineating what constitutes a toxic pollutant, it is constitutional because it specifies procedures by which the state Environmental Improvement Division (EID) will determine whether a pollutant is toxic before its discharger can become liable for any sanctions. The court next rules that a provision defining a toxic pollutant as any pollutant or combination of pollutants creating a lifetime risk of more than one cancer per million exposed persons is supported by substantial evidence in the record. Specification in the record to Environmental Protection Agency water quality criteria recommending this test as one of several for identifying toxic pollutants constitutes sufficient support. The court also rejects appellants' claim that they were denied a fair hearing. The fact that the EID proposed the challenged regulations and advocated them before the Water Quality Control Commission did not render the hearing unfair to appellants because the statute establishing the Commission made EID a member and gave all members the power to recommend rules. Finally, the court rules that the Commission did not unlawfully delegate its authority to the EID in the preparation of the regulations.

Counsel for Appellants
Peter J. Nickles, Charles H. Montange, Kenneth Carroll
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

James G. Williams, Associate General Counsel; Susan L. Edwards
Phillips Petroleum Co.
P.O. Box 3209, Denver CO 80155
(303) 740-7447

G. Stanley Crout, Sunny J. Nixon, Mott Woolley, Michael S. Yesley
Bigbee, Stephenson, Carpenter, Crout & Olmsted
P.O. Box 669, Santa Fe NM 87504-0669
(505) 982-4611

Counsel for Appellee
Jeff Bingaman, Attorney General; Bruce S. Garber, Weldon L. Merritt, Allison G. Karslake
Bataan Memorial Bldg., Santa Fe NM 87503
(505) 982-6000