(concurring in part, dissenting in part).
36. Although there is much with which I agree in Judge Alarid’s opinion for the panel, I disagree with the analysis in several respects. In my view (1) the district court’s finding of mere negligence will not sustain the $10,000 award of punitive damages against the Appellants for the public nuisance predating the effective date of AQCR 751; (2) regulations that specified the method to be used to prevent or abate air pollution were prohibited by the statute in effect during the pertinent period, yet we should nevertheless affirm the penalty of $60,000 imposed for the sixty removals of asbestos from the effective date of AQCR 751 through June 5, 1990; and (3) further findings and conclusions are necessary to justify the award of $6837 imposed for dumping asbestos at the old city landfill.
37. First, the $10,000 punitive damage award cannot be sustained because the district court did not find that any of the Appellants had the requisite mental state for imposition of such a sanction. The district court found “that the [Appellants’] conduct was negligent but not willful or reckless.” Although the majority correctly states that punitive damages may be awarded as part of a cause of action for common-law public nuisance, none of the cases cited stands for the proposition that punitive damages can be awarded for mere negligence. On the contrary, State ex rel. Pollution Control Coordinating Board v. Kerr-McGee Corp., 619 P.2d 858, 865 (Okla.1980), states that punitive damages can be awarded for willful, grossly negligent, or reckless conduct; and United States v. Hooker Chemicals & Plastics Corp., 748 F.Supp. 67, 77 & n. 11 (W.D.N.Y.1990), indicates that punitive damages for common-law nuisance are to be awarded under the same standard as for punitive damages in other eases. The universally accepted rule appears to be that “[t]he right to recover punitive damages in nuisance actions is governed by the law concerning the recovery of punitive damages generally.” J.L. Litwin, Annotation, Punitive Damages in Actions Based on Nuisance, 31 A.L.R.3d 1346, 1349 (1970). One requirement is that “the defendant’s wrongful act was characterized by either wilfulness, wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous conduct, insult, indignity, or fraud.” Id. I therefore respectfully dissent from the affirmance of the $10,000 punitive award.
38.Second, I agree that the $60,000 award for violations of AQCR 751 should be affirmed. I agree that the regulations establish strict-liability offenses and that NMED is not barred by equitable estoppel. I also agree that the regulations at issue relate to the prevention and abatement of “air pollution” within the meaning of the Air Quality Control Act (AQCA). In addition, the majority may be correct that the regulations at issue constitute emission standards or limitations within the meaning of the AQCA. I am more concerned than the majority, however, by the statutory command that “[regulations shall not specify the method to be used to prevent or abate air pollution.” NMSA 1978, § 74-2-5(B)(l) (Repl.Pamp.1983 & 1990). (This requirement was removed from the statute by a 1992 amendment, see NMSA 1978, § 74-2-5 (Repl.Pamp.1993), but that amendment does not affect this case.) I do not believe that this statutory requirement is rendered totally impotent by the statutory requirement that regulations “prescribing] standards of performance for sources and emission standards for hazardous air pollutants ... shall be ... at least as stringent as required by federal standards of performance[.]” Section 74-2-5(B)(l). Prior decisions by New Mexico courts have taken seriously the prohibition against regulations specifying a method of controlling pollution. For example, responding to an argument that a regulation violated this prohibition, Kennecott Copper Corp. v. New Mexico Envtl. Improvement Bd., 94 N.M. 610, 613, 614 P.2d 22, 25 (Ct.App.), cert. quashed, 94 N.M. 675, 615 P.2d 992 (1980), stated: “How Kennecott achieves emission control is not a part of EIB’s regulation; that it must bring its control of emissions within the limits allowed is.” See Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Board, 80 N.M. 633, 645, 459 P.2d 159, 171 (Ct.App.1969).
39. Nevertheless, in this case it is not necessary to determine the precise scope of the prohibition against regulations that specify the method of prevention or abatement. The district court imposed a penalty of $1000 for each of the 60 removals that occurred while AQCR 751 was in effect. NMED alleged that each removal violated six different regulations, but a $1000 penalty could be imposed for a violation of any one of the six. See NMSA 1978, § 74-2-12(E) (Repl. Pamp.1983 & 1990). Thus, the penalty can be sustained if at least one of the six regulations does not specify the method to be used to prevent or abate pollution. In my view at least two of the regulations pass that test. One regulation required the Appellants to give prior notification to NMED that they would be removing friable asbestos material. Another prohibited emissions of asbestos material to the outside air during removal operations, without setting forth how that was to be accomplished. Because the Appellants have not adequately challenged the factual basis for finding that those two regulations were violated, the $60,000 penalty must be affirmed.
40. Third, I fail to understand the basis for the majority’s affirmance of the $6837 award arising from dumping asbestos waste at the landfill. The award represents approximately three times the cost incurred by NMED to remove the waste. Because the award exceeds the only measure of “actual damages” contained in the record, it appears that the award, at least in part, is a penalty. Yet, the district court did not make findings necessary to support an award of punitive damages. If the district court had found that the removal operations constituted seven violations of provisions of AQCR 751, an award of up to $7000 would be authorized, see § 74-2-12(E), but the district court made no such finding. I would therefore remand to the district court for further findings and conclusions to determine whether there is a proper legal foundation for the award of $6837.
41.Finally, I concur in rejecting the challenges to the judgment raised by the cross-appeal.