*1
223
40A-16-11, su-
purpose
An
obvious
§
**holdthat property disposes of the he
supra, when stole. he hold that our suggests
Defendant concerning problems difficult will raise
ing State v. not. It does jeopardy.
double (1975). 333, 813 540 P.2d
Tanton, 88 N.M. Decisions Supreme Court States
United by defendant on relied
The decisions and con- statutes
concerned with federal statutes. enacting the intent in
gressional themselves concern did not decisions
Those of the New language “disposing”
with the intent statute or
Mexico enacting the Legislature relied decisions language. The “disposing”
on are United Gaddis, States v. 424 U.S. 96 S.Ct. 222 (1976); L.Ed.2d States, supra; v.
Milanovich United Heflin S.Ct. States, U.S. United v. deci- These L.Ed.2d applicable. are not
sions
Affirmed.
IT SO ORDERED. IS SUTIN, JJ., concur.
HENDLEY *2 Cole, McLeod,
Richard B. & Keleher Albuquerque, appellants in for Hannahs, Federici, Montgomery, Fred C. Andrews, Buell, Fe, Hannahs Santa & Wilmer, Norton, Phoenix, Bruce Snell & Ariz., appellants in 1923. Toney Anaya, Atty. Gen., Robert A. Engel, Sp. Gen., Atty. Asst. Bruce S. Gar- ber, Improvement Agency, Environmental limited (a) degree character and to: Fe, appellee. injury health, Santa to or interference with welfare, visibility and property; (b) the Burnett, Grove T. Mexico Citizens public interest, including the social and Air, Fe, for Clean Santa amicus curiae. economic value of the sources and sub- jects of air contaminants; (c) technical OPINION practicability and economic reasonable- *3 HERNANDEZ, Judge. ness of or reducing eliminating air con- appeal This is an' from the of action taminants from the sources involved and Improve- the New Environmental previous experience Mexico equipment ment (Board) amending Board New methods available control the air con- Quality Mexico Air Regulation involved; Control taminants 602(B). No. points
Three of alleged, error are (9) Develop adopt plans a or dispositive second of appeal, which is this control, regulation, prevention for the regu- The to-wit: Board’s enactment of the pollution, or abatement recognizing of air lation is not in needs, accordance with law. differences, requirements conditions in the different areas of the parts The Quality of the Air Control state. ...” Act, 12-14-13, Sections 12-14-1 to N.M. (Repl.Vol. S.A.19S3 perti- Supp.1975) Section No. 602 of the Ambient appeal
nent to this following: Quality Standards and Air Control “Section 12-14-2(A)- Regulations contaminant’ adopted by the —'‘air substance, any means including but not Health and Social Services Board on March particulate any matter, fly ash, 25, limited to provides pertinent part: dust, fumes, gas, mist, smoke, vapor, “602. Coal Burning Equipment—Sulfur material, micro-organisms, radioactive Dioxide any decay combination thereof or person A. No owning or operating new product or thereof; reaction ‘air (B) burning equipment coal having power pollution’ emission, except means the as generating capacity mega- in excess of 25 nature, such emission occurs into the input greater watts or a heat than 250 atmosphere outdoor of one more air or per million British Thermal Units hour contaminants in quantities such and dura- cause, permit, shall suffer or allow sul- tion may as probability with reasonable atmosphere fur dioxide emissions to injure health, plant human animal or per pounds in excess of .34 million British life, may or as unreasonably interfere input. heat Thermal Units public welfare, with the visibility or the ” 31, 1974, person B. After December reasonable of property; use . . owning operating existing coal burn- or 5(A)—The “Section board shall 12-14— power generating ing equipment having a prevent or abate air The (B) megawatts or a capacity in excess of board Adopt, pub- promulgate, shall: (1) input than 250 million greater heat lish, repeal amend and regulations con- per shall hour British Thermal Units sistent with the Air Quality Control permit, cause, or allow sulfur suffer Act ... or abate air atmosphere in emissions to the dioxide pollution, including regulations pre- per million British pound excess of one scribing air standards geo- within the input.” of heat Thermal Units graphic area of jurisdiction, the board’s sub-paragraph any part proposed change making thereof. ... In regulations, is the sub- regulation, “B” this which give board shall weight ject appeal appropriate deems matter to all facts Improve- circumstances, adopted the Environmental including but not 13, 1974, ment Board By reducing on December reads the amount of sulfur dioxide permitted follows: existing in the air sources, more room will made avail- person owning “B. No operating able, up to the state sulfur dioxide stand- burning equipment coal shall ard, industry Four Corners permit, cause, suffer or allow sulfur area. dioxide atmosphere: emissions to the “B. Environmental United States July 1. after in excess of Agency required Protection has per cent weight of the sulfur burning sulfur dioxide control on coal dioxide produced upon which would be equipment at Four In Corners. order prior combustion of the coal regain for New Mexico to control over
pretreatment if the burning equip- coal its air region, in the Four Corners capacity ment has a greater rated heat promulgate regula- State must its own than 250 million British Thermal Units tions, approved by which must be (higher heating value) and less than *4 Agency. Environmental Protection 3,000 million British Thermal Units Those state must be at least (higher heating per value) hour; or as strict as the E.P.A.’s under the re- July 31, 1977, 2. after in excess of quirements of the Federal Air Act. Clean per cent, by 15 weight, of the sulfur “C. The sulfur re- dioxide control produced dioxide upon which would be 70% quired by the Environ- United States prior combustion of the any coal to technically mental Agency Protection pretreatment if the burning equip- coal practicable economically and reasonable. ment has a rated capacity equal heat 3,000 greater to or than million British 65%, “D. The and 90% 85% Thermal (higher heating value) Units controls have been shown to be techni- per hour; cally practicable economically rea- sonable and are attainable within the July 31, 1979, after in excess of time frames set forth the extension per cent, by 10 weight, of the sulfur reaching of time for control to two 90% produced dioxide which would upon years. prior combustion of the coal to pretreatment By extending burning equip- the coal “E. the time limitation ment reaching has a rated capacity equal heat control to 90% greater 3,000 industry or than the time million British Board feels will have Thermal (higher equipment get it heating Units needs to test its value) per hour. properly working. “F. There is evidence to describe how subsection,
As used in
‘pretreatment’
this
single
may preempt
source
other
washing
means
or
other method of
if it is
sources
allowed to contaminate
removing sulfur
prior
from the coal
up
standards.
its combustion and does not
include
crushing
blending operations.”
or
There is
that a
“G.
evidence
show
higher
efficiency
controlled
gave
The board
the following reasons
visibility.”
because of the effects on
adopting
this amendment and others
appeal:
relevant to this
Administrative bodies are
crea
“A.
require
To
no
85%,
they
tures of statutes. As such
have
and later
65%
powers
sulfur
common law or inherent
and can
dioxide control on
90%
only
smaller
as to those matters which
larger
burning
coal
act
equipment,
delegated
respectively,
scope
authority
of the
protect
will
wel- within
fare,
Co., et al
property,
Maxwell Land Grant
and the
to them.
interest
Jones,
reducing
Four Power and Coal Facili- Air Gasification Divi- sion ties in the Northwest Corner New : report purpose of Mexico.” The this my testimony briefly, “To summarize I analyze quality im- cumulative have indicated that various diffusion pact power gasification facili- of four can quality; models be used assess air already planned ties built at plant Four is now and Corners future, January two times will be exceeding Dr. S. Schermer- January R. when standards controlled to horn, principal engineer environmental 30%; relatively and that high con- SO2 Associates, during his of R. W. Beck and centrations from the Four Corners Plant testimony summarized conclusions experienced large can be at distances study as follows: possibility there is the “They indicate that ambient air plant the Four Corners at if left 30% Air Quality Stand- [Ambient development control could limit further ards, 201, adopted January 1970] in the area.” can met with removal efficiencies SO2 On he cross-examination stated the follow- percent. at Four Corners low as ing: efficiency, computa- At this removal prob- “Q.
tions indicate a remote statistical you kind of confidence What could ability single of the violation air- question ascribe to the of whether quality standard once a decade. power or not Corners Four plant at meet would “There would be a remote statistical 70% standards, the New Mexico as- probability of one violation in a decade. suming you really adequate had percent One one-hundredth one with monitoring ? percent, operating prob- at 35 units ability at all indicated violation past “A. Based on I work have operating percent.” them at Corners, my done for feeling Four is that at control the Four following, questioned He stated the when *6 plant Corners would not exceed our might as to whether there be other facilities per parts twenty .1 million built in the area other than those included average. four hour in study: “ . my . . indication is that here “Q. you . hearing . . testified at the these are the facilities that are antici- in December or the in continuation pated by operators four through those January proposed that if the stand- 4, through units 1 Four [San Juan time, ard at roughly that which was 5, Corners through units 1 Wesco and stringent twice as as the standard units], Burnham 5 I have reason adopted, that New has were to believe that there will will or not be adopted . . . that the Four developments additional industrial power plant only Corners would our calculations that indicate there’s control, you have to I think said develop- room for additional industrial ment, except statistically very which, unlikely 76%, in not sure I’m 72% cases.” in order to meet those stringent which are twice as as the only other evidence in the record one we now have. Isn’t that cor- relating violation of standard § rect? is testimony found of Mr. Bruce Nicholson, Program Manager up. for “A. I could look that I believe Meteorology pretty Section of the Environmental that much correct.” As can be seen the only evidence relates 602(B)(2) and 602(B)(3) to § to violations of standard when sulfur abate violation of the ambient air § dioxide is controlled ato level. standard 201. recognize
We that an testimony adminis Clayton, Cubia Mr. trative board in making its determinations Air Quality Chief of the Division of the may give greater credence to some evi New Mexico Improvement Environmental other, dence rather than Agency, to some explanatory, and that only of the it is not a court’s function agency’s to substitute its proposing reasons for the amend- opinion ment, adopt- administrative but of the board’s reasons for board. Otero ing v. New Mexico excerpts State Police it. These are some of that Board, 83 N.M. P.2d 374 testimony: However, this is in situations where there “. . say .1 would like to first that is a difference or a conflict the evi we considering regulations are today dence, complete not a absence. areWe couple for a of reasons. The first rea- cognizant also of the following holding son, course, is the fact that the State in Wylie Albuquerque- Bros. C. C. v. implementation plan correspond- and the C.A.C.B., Bernalillo 633, 643, ing regulations have been dis- SO2 P.2d (Ct.App.1969): approved by the Environmental Pro- opinion “We of the Agency. tection . . . feel that [W]e adopted by a board Environmental [the . . . regula- that the Improvement Board], after substantial tion up we end with approvable is an one compliance with public hearing re- and thereby return to New quirements, supported need not be sub- Mexico the control of New Mexico air stantial evidence The second reason is an eco- nomic reason ... I think one of Legislature contemplated
“Had the important the most reasons for recon- regulations adopted by a board must be time, sideration at this supported by substantial evidence ad- particularly regulation 602 on emis- SO2 public hearing, duced at it could sions, is potential because of the limita- easily have so stated.” tion that an existing impose can on source industry. . . allow parts This court then quoted [T]o of Section up existing source to use than its more 12-14-7, (Repl. Supp. N.M.S.A.1953 Vol. going fair share of the air shed is to im- This 1975). repealed by section pose ceiling potential development on Legislature Appeals are now one, . No at governed point time, 12-12-13, I Section N.M.S.A *7 say exactly think could what or how 1953 (Repl. pro- Supp.1975), Vol. development extensive the new in this part: vides in region think might . I be. [S]o Upon appeal, Appeals “I. the Court of how properly the focus should shift shall regulation only set aside the trying guess room we to much allow found to be: industry may be in- what kind new (1) arbitrary, capricious or an abuse technology to can . volved what do. discretion; to ask an I don’t think it is reasonable (2) supported by not substantial evi- than the best source to do better transcript; dence in the or technology available for it. (3) otherwise not in accordance with Nonetheless, ought job to do the best one law.” . . . be done can [W]hatweare technology get is the best any trying There in this to do to evidence record of need, hopefully present put plants and then reasonably anticipated or a on those the need, unless adoption future to to leave them alone warrant the be able § development region that at adopt in the is such notice and hearing, and to point simply time it implement some neces- to explain or However, it. ” sary thing may the whole . reexamine not set a adopt or regu- standard lations implementing explaining or it for by given Reason “F” answer- the Board is any “prevent reason other than to or abate by ed holding our as to reason their first pollution.” Likewise, the Board cannot nothing in the man- “A”: there is Board’s adopt regulations implementing explain- or gives authority date that it the ing except “prevent standard or § development the or industrial of this pollution.” abate air other area in the State. Accordingly, petition the to set aside § There is no substantial evidence 602(B)(1) is granted denied. It as to support in the record to the final Board’s 602(B)(2) grounds the (3) on § gaseous reason dioxide in a “G”. Sulfur the action of the in adopting Board them “heavy form is a colorless nonflammable accordance with law and these gas of pungent suffocating odor.” Web are hereby sections set aside. Dictionary, ster’s Third New International IT IS SO Unabridged [Emphasis ORDERED. (1971). Ours.] Whether do sulfur dioxide emissions can or
combine with in the at other elements SUTIN, J., concurs.
mosphere produce gas, a visible what or
ever, LOPEZ, J., the record does not indicate. dissents. studying Judge Lopez’ After dis LOPEZ, Judge (dissenting). senting opinion, feel that we elucidation I dissent. our reasoning is lest others be Board, in promulgating confused. The presented The issue case is by this an standard governed no doubt was authority agency’s administrative to set subparagraphs (a), (b) and As was (c). regulations in statutory with its accordance standard, previously, by stated adopting this authority appellate and the deference an criterion, yard the Board established court must show to determinations made will, you determining stick if con what agency an administrative when there contaminant, quantity centration or of this support is substantial them. evidence periods, specified time constituted majority opinion, without examination judgment It that con made statutory authority, relevant con- quantity prescribed centrations over Improve- cludes the Environmental health, injure visibili would interfere with authority. ment Board lacks ty, welfare, adversely etc. affect the opinion disregards then the substantial evidence found in the record to conclude applies “Standard authoritative change rule, that there is no need for principle, or deter- measure used to regulation. extent, quantity, weight, mine the value, especially quality, level, or de- A synopsis governing brief gree of a thing.” Webster’s Third statutes is necessary to frame issues Unabridged Dictionary, International Mexico, pursuant in the case. New to its Act, (§§ Control 12-14-1 to *8 12-14-13, 3, (Repl.Vol. Supp. N.M.S.A.1953 bound having The Board set the standard is adopted Quality has an Ambient Air by it, 1975)) Pell- the same as one else. See dioxide, Standard for sulfur Air Heim, 1122 N.M. 534 P.2d man v. 87 § Regulation. Control This stand- Quality & Dept. Davis Health (Ct.App.1975); v. specifies ard the con- Services, maximum allowable 499 1001 Social 84 N..M. P.2d contaminants, of in- continuing au- centration various air has It the (Ct.App.1972). cluding standard, proper sulfur are not Standards thority change the after dioxide. dispute between sharp dividing line The fundamental “provide a designed to in litigants the manner satisfactory quality and air here concerns between air of are, are In- regulations which emission fixed. unsatisfactory quality. They how- regulations objectives dustry ever, represent contends numbers which at such a level that the New preserve must be set our air resources.” Sec- will met, just not Mexico standard will be but Quality Regulation. tion Control way putting Another this is exceeded. plays an The federal Air Act also Clean say that once Board has decided important in this role case. U.S.C. § standard, quality only job its on the air scheme, (1976). Under the federal is to calculate what level of emissions will quality primary a national air ambient The Board cause this standard to met. has been standard for sulfur dioxide maintains that the standard does not con- (1975). promulgated. 40 C.F.R. 50.4 § regulation; trol the emissions different Primary are said to “define arriving at a factors were stressed air quality levels of which Adminis- arriving permissible a than at standard necessary, an judges trator with argues emissions The Board that its level. adequate margin safety, protect requires it set the statutory mandate 50.2(b) (1975); health.” 40 C.F.R. § regulation emissions after examination of (1976). The U.S.C. 1857c-4(b)(l) § considerations; it is various not directed requires plan Act each a state to submit merely select a and then tailor standard specifies which how the state will achieve regulation fit it. emissions to' standard, and maintain the national 1857c-5(a) U.S.C. New (1) (1975). § Once it is decided whether the Board implementation plan rejected Mexico’s can set emission at a level low- insofar related to control of sulfur er than that to meet the stand- dioxide emissions the Four Corner’s ard, remaining statutory issue is what area, and the Environmental Protection provisions are intended to control Agency imposed own stricter controls. inquiry Board’s is neces- discretion. This 40 C.F.R. 52.1624 The Environ- (1975). sary § to determine the Board’s de- whether mental Agency proposed Protection has ac- cision is in with law. accordance ceptance plan Mexico’s basis New on the first the standard issue—whether subject which are the automatically level— sets the emissions 40 Fed.Reg. (1975). suit. must be examination of the resolved statutory
Another
an
mechanism with
giving
authority
statute
the Board
to set
important bearing on this case is the New
regulations.
standards and
Mexico and federal
treatment of new
portion
The relevant
of the statute reads
pollution.
sources of air
as follows:
provides authority
Air Quality Control Act
powers
“12-14-5. Duties and
board.
deny
permit
the Board to
for new
prevent
The board
or abate
—A.
shall
sources
“the new
emit a
source will
air
pollutant
air
hazardous
or air contaminant
The board shall:
“B.
per-
excess of a federal standard of
publish,
Adopt,
promulgate,
formance,
“(1)
regulation
or a
of the board.”
repeal regulations consistent
supra.
amend and
7(C)
Section
The fed-
(3),
12-14—
the Air
Control Act
provision,
subject
eral
also
to en-
[12-
prevent or abate
14—1 to
forcement
the Administrator
if the
13]
12-14—
pollution, including regulations pre-
inadequate,
states that
state
geo-
scribing
permits
air standards within
granting
source
must be denied if
graphic
jurisdiction,
them
the board’s
will
achievement of the
area of
Regulations shall
any part
standards. 42
thereof.
national
U.S.C.
used to
the method to be
(a)(2)(D)
specify
1857c-5
*9
Any
bility
pollution.
property.”
or the
use of
prevent or abate air
reasonable
supra.
promulgated
12-14-2(B),
Section
The case be-
regulation
under
sec-
law,
fore us
not
tion shall be consistent with federal
does
concern how
stand-
established,
any, relating
motor
ards
ascertain
to control of
were
but we can
statutory
making
regu-
provisions
its
from the
there
vehicle
In
emission.
give weight
relationship
it
lations,
the board shall
is no
between the
appropriate
pollution.
all
and cir-
deems
facts
standard and the definition of air
cumstances,
including but not
limited Even if it were
that the standard
assumed
pollution,
defines air
the Board is directed
to:
“prevent
pollution;
or abate” air
and
degree
injury
“(a) character and
abating
pollution
regulate
in
air
it
less-
can
health, welfare,
to,
with,
or interference
er evils than
that “with reasonable
those
visibility
property;
health,
probability injure human
animal or
interest,
“(b)
public
including the
plant life.”
value of the
social
economic
sources
legislature
Another indication that
contaminants;
subjects
air
prohibit
regulation
did not intend to
all
practicability
“(c) technical
and eco-
standard
emissions under the
quality
reducing
nomic
reasonableness
provision
is
in
statutory
found
eliminating air contaminants from the municipal
county-wide
administration
previous experience
sources involved and
quality.
12-14-4(A),
of air
supra.
Section
equipment
and methods available to
Boards,
Under this section local
which are
involved;”
air contaminants
subject
statutory
to the same
direction as
regulate
pollution”,
the state board
“air
The statute refers to both
standards
regulations
are allowed to
stricter
than
set
includes,
regulations.
gen-
It
within the
regulations.
the state
12-14-4(A),
Section
adopt regulations
pre-
eral directive to
supra; Wylie
Albuquerque-
C. C. v.
Bros.
pollution,
vent or abate air
the directive to
C.A.C.B.,
Bernalillo
459 P.2d
N.M.
adopt
prescribing air standards.
(Ct.App.1969).
making
“regula-
in
It then states that
tions” the Board should consider
is
Once
is determined that the Board
enumerated
I would conclude that
factors.
compelled
regula-
to set the emissions
“regulations”
because
“standards”
includes
tion at such a level as to meet the stand-
require
legislative
intent
at-
was to
ard, the issue becomes whether the Board
tention to the
in mak-
enumerated factors
adopt-
has acted
accordance with law
ing
both
and standards.
ap-
ing
regulation.
the emissions
are,
plicable statutory provisions
as shown
Industry argues
overriding pur-
that the
above,
5(B)(1),
enumerated in § 12-14—
power
pose
regulatory
of the Board’s
supra.
pollution”
regula-
“air
and that
given by
Two of the reasons
the Board
anything
pollution
tion of
than air
less
jurisdiction.
relate to the need to leave room for more
outside the Board’s
development in the
industry’s
industrial
Four Cor-
premise
argument
on which
problem
addressed
quality
ner’s area. The
bottomed is that
the ambient air
statute, and
pol-
“Air
Board is that under its own
define air
“
Act, permits
under the federal Clean
lution” is
as
defined
Act
given if al-
emission,
industry
for new
cannot be
except as such
oc-
industry
lowing the
will cause
nature,
atmosphere
curs
into the outdoor
Put
standards.
violation of the
of one or more air contaminants
such
allow
simply,
present regulations
if the
quantities
may
and duration as
with rea-
standards,
health,
pollution up
to the level
injure human
probability
sonable
industry
there will be no room for a new
life,
may
plant
animal or
unreason-
welfare,
produces any pollution.
if it
visi-
ably interfere with the
*10
consequence
by design”,
“as a
not
occur
majority opinion does
contend
The
could be considered derelict
of
and the Board
evidence
there
not substantial
that
plan
it did not
the
new in its duties if
the effect of
growth and of
future
in
it makes
future effect of the decisions
quality, but
ambient air
plants on the
today.
au
has no
that the Board
contends
stead
The
for these reasons.
regulate
to
thority
given by
reason
the Board
The second
adoption
this
of
for its
reasons
Board’s
that
of
for its decision is
removal
at least
level will
that this emission
regulation is
sulfur dioxide emissions is
the
“welfare,
public
property and the
protect
necessary
regain
if
to
New Mexico is
con
con
keeping
pollution
air
interest”
its
The Air
trol of
air.
Control
restraining factor
being a
from
siderations
the
is "the state air
Act states that
Board
is
By
the Board
growth.
statute
on future
purposes
pollution
agency
for all
interest,
to
"the
consider
directed
legislation relating
pol
to
under federal
air
value of
including
and economic
the social
necessary
all
to
may
lution and
take
action
subjects
air
contami
sources and
the
political
to this state and its
sub
secure
in
supra)
(b),
(§
14—5(B)(1)
nants”
the benefits of such federal acts.”
12—
divisions
“public in
The
regulations.
its
making
12-14-3, supra. The federal Clean
Section
concept
permit
enough
to
is broad
terest”
gives
responsibility to
primary
Air Act
public will best
weigh how the
the Board to
quality
state
maintain the air
each
to
plants
by permitting the first
served:
be
that
within
state.
U.S.C.
air, or
up” the clean
area to “use
in the
reasons
1857c-2(a)
Practical
appel
these
hardship
the
to
by weighing
acting
justified
that
in
dictate
the Board is
against
the
economic
“social
lants
air.
obtain control over New Mexico’s
to
the
which
new industries
value”
the
authority,
regains
the
this
Unless
Board
See, New Mexico
expects to attract.
area
legislative
the
intent
a New Mexico
that
L.,
Imp.
Envir.
New Mexico
Mun.
Inc. v.
agency
questions
quality,
deal with
(Ct.App.
Bd.,
539 P.2d
88 N.M.
Board,
by establishing
as indicated
this
will
(administrative
interpretation of
1975),
Further, if the
con
be frustrated.
Board
concerns”).
Board
legislative
The
“broad
promulgate regulations
the
tinues
below
the “welfare
also concluded that
has
requirements,
federal
its actions will
area’s
property” of the
effect, a result
without
we cannot assume
unduly interfered with
citizens will be
Romero,
Trujillo v.
legislature
the
desired.
kept
pol
the
plants
out because of
are
(1971);
n differences, recognize pollution to “the adopted. opinion majority does were needs, requirements and conditions not take issue with Board’s conclusion state”. areas of the Section different technically that supra. (B)(9), 12-14-5 economically feasible. conclude, opinion majority does None of the considerations appellants’ despite the failure contest to the specifies are limited time statute point, there is no that substantial such as present. Considerations support conclusion evidence Board’s legis- express a “public do not interest” modify the old short- intent the Board be lative the stand- regulation is no There sighted its evaluations. I think there being violated. ard social statement the Board’s support evidence substantial actions economic of the Board’s effects Finally, the fed- opinion the air standard. majority that the conclusion *11 almost government, eral with a standard appellate re- disregards the standards (40 the same as New Mexico’s C.F.R. contrary reaching a conclusion. view found that New Mexico’s control was Optical 50.4) Texas Co. v. International Royal conflicting, insufficient. The evidence was Co., Optical -, State P.2d sup- and there was substantial evidence to 398 (Ct.App.1976) (Sutin, J., dissent- cert, port findings. the Board’s ; Mr. March granted, ing) “ testimony that Nicholson’s disagree Finally, I statement occasions, by two dif- on three different that there was no substantial evidence using models which people, and ferent finding higher that a support the Board’s monitoring to actual matched have been prevent degree of control is plant, it was the Four Corners data for visibility. Board interference with All the shown said is that sulfur dioxide emissions can not sufficient visibility problem; although contribute to a [sulfur dioxide] SO2 admittedly issue in quality stand- this was not the critical ambient air state testimony hearings, of the New being His state- exceeded.” ards Lung Association and the Pol- cross-examination, quoted in the ment on lution Primer (National Tuberculosis opinion, control majority 70% Association, Respiratory Disease New sufficient, cannot be cited to demonstrate York, York, 1971) introduced (the regulation) old 35% support finding. them testimony Dr. Michael sufficient. The that con- Williams of the Club was Board should be Sierra upheld. required to meet trol over would