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Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd.

ELR Citation: 6 ELR 20754
Nos. No. 27093, 553 P.2d 800/191 Colo. 463, (Colo., 08/23/1976)

The Colorado Supreme Court vacates most of the $41,500 civil penalty levied against plaintiff but upholds an injunction prohibiting plaintiff from operating its plant without installing air pollution control devices. The civil penalties assessed for violations of air pollution control standards, challenged by plaintiff in this proceeding, are not criminal in nature, in view of the change in the statute by the legislature from criminal to civil penalties. In addition, the trial court did not abuse its discretion in fixing the amount of the penalty. The trier of fact has broad discretion to accept the testimony of inspectors using the visual opacity test, the legal validity of which is well-established. Since the injunction in question was sought pursuant to a statute and on behalf of the public, the defendant need not show irreparable injury. Defendant's use of weather charts and relative humidity readings is not inadmissible hearsay evidence. Finally, plaintiff has not shown that it has been the subject of a systematic scheme of selective enforcement of the law. Relying on a companion case, Air Pollution Variance Bd. v. Western Alfalfa Corp., 6 ELR 20752, the court finds that only six of 83 inspections were followed by notice sufficient under due process requirements to advise the plaintiff that an inspection had just occurred. Accordingly, the trial court on remand may assess civil penalties only for those properly-noticed inspections, although these violations support retention of the injunction.

A dissent argues that, in view of the substantially reduced number of violations, the trial court should be allowed to rule again on the issuance of the injunction.

Counsel for Plaintiff
Ira C. Rothberger Jr.
Robert S. Slosky
Rothberger, Appel & Powers
1600 Broadway
Denver CO 80202
(303) 893-5535

Counsel for Defendant
J.D. MacFarlane, Attorney General
Mary J. Mullarkey, Fist Asst. Attorney General
David K. Rees, Asst. Attorney General
Gregory J. Hobbs Jr., Asst. Attorney General
104 State Capitol
Denver CO 80203
(303) 892-2542

Erickson, J., for the court; Groves, J., dissents.