specially concurring.
I concur in the majority’s conclusion that under City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980), the district court’s grant of summary judgment was improper. I therefore agree in the majority’s reversal of the district court’s decision and in remanding for further proceedings. However, I disagree with portions of the majority’s analysis and therefore specially concur.
The majority contends that there is a conflict between the statutory language and the holding of Redding because the word “waste” is used in both NMSA 1978, Section 41-4-8(A) and (B)(2) (Repl.Pamp.1989). In the majority’s view, “waste” should mean the same thing in both subsections, and thus if “runoff water” is included within the meaning of “waste” in Subsection (A) (as held in Red-ding ), it must also be included within the scope of Subsection (B)(2). However, the majority has independently determined that runoff water is not included within the scope of Subsection (B)(2). Based on these determinations and an analysis of the additions of various sentences to the statutes, the majority concludes that the legislature must not have intended water diversion works to constitute a public utility or service for “liquid waste disposal” within the meaning of Section 41-4-8(A), a conclusion that the majority has further determined is inconsistent with Redding. I disagree and believe that the “conflict” or inconsistency seen by the majority is fully reconcilable.
I agree with the majority that, under Redding, a system to dispose of storm runoff water is a public utility or service for the collection or disposal of solid or liquid waste within the meaning of Section 41-4-8(A). Redding, 93 N.M. at 759, 605 P.2d at 1158. Thus, immunity for injuries resulting from the negligent maintenance of such a system would be waived.
I do not see a conflict between Section 41-4-8(A), Redding’s holding, and Section 41-4-8(B)(2) because, reading that subsection as a whole, I believe it clearly refers only to pollutants. The phrase “or other irritants, contaminants or pollutants” indicates that the term “waste materials” is intended to encompass toxic substances. Id. As the majority notes, the language from the subsection is that of standard pollution-exclusion clauses in insurance contracts. See New Castle County v. Hartford Accident & Indent. Co., 970 F.2d 1267, 1271 (3d Cir.1992). I thus agree with the majority’s conclusion that storm runoff water is not included within the scope of Section 41-4-8(B)(2).
I believe that a more-reasonable interpretation of Section 41-4-8(B)(2) is that it refers to accidental discharges of waste materials that are toxic, and not to dispersals of nontoxic substances that occur as the result of the regular operation of a public service. See New Castle, 970 F.2d at 1271 (standard insurance clause states that clause does not apply if the discharge is “sudden and accidental”). Additionally, I believe that this subsection was intended to allow for the operation of solid waste disposal sites and similar facilities. My analysis therefore “explains away” the conflict seen by the majority. Simply stated, Subsection (B)(2) is “boiler plate” language for toxic wastes, thus excluding runoff water; Subsection (A), on the other hand, does not encompass such language. Additionally, Redding clearly held that Subsection (A) includes runoff water. The scope of Subsection (B)(2) was not addressed in Red-ding. Thus, in my view, Subsections (A) and (B) and the holding in Redding are reconcilable.
In connection with the majority’s discussion of NMSA 1978, Section 41-4-6 (Repl.Pamp.1989), and the City’s argument that the second sentence of that Section reinstates immunity, I observe that in Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991), our Supreme Court stated that “ ‘Section 41-4-6 * * * contemplate[s] waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government * * Id. at 653, 808 P.2d at 623 (quoting Castillo v. County of Santa Fe, 107 N.M. 204, 205, 755 P.2d 48, 49 (1988)). This language makes me uncertain about the basis for the majority’s statement that Section 41-4-6 is inapplicable because it applies only to operation and maintenance of works used for diversion or storage of water in public parks and on the grounds of public buildings. For this reason, I propose that Section 41-4-6 does not apply because Section 41-4-8(A) is the more-specific provision applicable to the facts of this appeal. Thus, even if Section 41-4-8(A) conflicts with Section 41-4-6, the more-specific statute governs. See Redding, 93 N.M. at 759, 605 P.2d at 1158. It would be reasonable for the legislature to distinguish between maintenance and operation of public utilities and services, see § 41-4-8(A), and other publicly owned property, such as reservoirs. See § 41-4-6. Therefore, Section 41-4-6 does not apply to situations where the injury arose from the alleged negligent operation of a public service.
For these reasons, I specially concur in the majority’s decision to reverse the district court’s grant of summary judgment to Defendant and to remand for further proceedings.