Air Pollution Variance Bd. v. Western Alfalfa Corp.
| Decision Date | 23 August 1976 |
| Docket Number | No. C--682,C--682 |
| Citation | 191 Colo. 455,553 P.2d 811 |
| Parties | , 9 ERC 1236, 6 Envtl. L. Rep. 20,752 AIR POLLUTION VARIANCE BOARD of the State of Colorado, Petitioner, v. WESTERN ALFALFA CORPORATION, a Kansas Corporation, Respondent. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David W. Robbins, First Asst. Atty. Gen., Gregory J. Hobbs, Jr., Asst. Atty. Gen., Natural Resources Sec., Denver, for petitioner.
Houtchens, Houtchens & Dooley, S. Robert Houtchens, Greeley, Linde, Thomson, Van Dyke, Fairchild, Langworthy & Kohn, George D. Blackwood, Jr., Kansas City, Mo., Kelly, Stansfield & O'Donnell, Donald D. Cawelti, Denver, for respondent.
In this petition, the Air Pollution Variance Board of the State of Colorado seeks to overturn a decision of the Court of Appeals which held that the respondent, Western Alfalfa Corporation, was denied due process of law in a hearing before the board. Western Alfalfa Corp. v. Air Pollution Variance Board, 510 P.2d 907 (Colo.App. 1973) (Not Selected for Official Publication). The sole issues now before us relate to the requirement of notice in visual opacity inspections and the validity of the visual opacity testing method.
The history of this case is long and complicated. On June 4, 1969, a field inspector of the Colorado Department of Health (Division of Administration) entered the premises of three Western Alfalfa Corporation plants (located in Windsor, Berthoud, and Eaton) for the purpose of determining whether the corporation was violating the air pollution control laws of the state. Representatives of the Department of Health had been engaged in conference and conciliation efforts with officials of Western Alfalfa Corporation since September 1967 in regard to air pollution violations. In the course of the inspection conducted on June 4, 1969, the inspector concluded that the three plants were in violation of state emission regulations. The law then in effect prohibited emissions where were in excess of a Number 2 on the Ringelmann Chart, or 50% Equivalent opacity, for a time period longer than three consecutive minutes in any one hour. 1967 Perm.Supp., C.R.S. 1963, 66--29--5. The inspector made the following record of violations:
1. Windsor Plant
Dryer ........... 90% opacity
Grinder ......... 70% opacity
Pelletizer ...... 50% opacity
2. Eaton Plant
Dryer ........... 85% opacity
Grinder ......... 70% opacity
Pelletizer ...... 50% opacity
3. Berthoud Plant
Dryer ........... 90% opacity
Grinder ......... 50% opacity
Pelletizer ...... 40% opacity
After making the readings, the inspector left the plants and did not notify anyone connected with Western Alfalfa Corporation of his presence or observations. Two weeks later, on June 17, 1969, Western Alfalfa Corporation received a cease and desist order from the Colorado Department of Health (Division of Administration)--their first notice of the fact that the inspection had occurred. Western Alfalfa filed a request for review with the Air Pollution Variance Board, and the enforceability of the cease and desist order was automaticially stayed. 1967 Perm.Supp., C.R.S., 1963, 66--29--10. 1
A hearing was held before the variance board, and the inspector who conducted the inspection on June 4, 1969, was present and testified. The variance board found that the corporation violated the Colorado Air Pollution Control Act and affirmed the cease and desist order which had been issued by the Department of Health. A petition for review was filed by Western Alfalfa Corporation. An injunction and/or civil penalties for air pollution violations cannot be obtained except for a violation of a final cease and desist order which is not subject to stay pending administrative or judicial review. 1967 Perm.Supp., C.R.S., 1963, 66--29--15 and 66--29--14. 2
The district court of Weld County reversed the variance board finding against Western Alfalfa Corporation and then, in the first Court of Appeals' opinion, the district court decision was upheld. Western Alfalfa Corp. v. Air Pollution Variance Board, supra. The Court of Appeals, in that opinion, held that the health department had violated the Fourth Amendment to the United States Constitution by making the inspection without consent or a warrant. After this court denied the variance board's petition for writ of certiorari, a similar petition was granted by the United States Supreme Court. Air Pollution Variance Board v. Western Alfalfa Corp., 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108 (1974). The United States Supreme Court ruled that the plain view doctrine permits an air pollution inspector to proceed without consent or warrant onto the publicly accessible portions of private premises for the purpose of observing emissions from a smoke stack. Air Pollution Variance Board v. Western Alfalfa Corporation, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). The Court remanded the case to the Colorado Court of Appeals for the resolution of any further issues which required consideration.
Thereafter, the Court of Appeals issued its second opinion in this case. Western Alfalfa Corp. v. Air Pollution Variance Board, 35 Colo.App. 207, 534 P.2d 796 (1975). In the second opinion, the Court of Appeals held:
'(T)hat where the real evidence of a violation does by its nature exist only temporarily and where that evidence can be preserved only through the subjective observations of an employee of the agency, the fundamental fairness requirement of due process dictates that the alleged violator, whether individual or corporate, must, in an administrative proceeding, be given notice of the fact that evidence is being gathered and be afforded a reasonable opportunity to be present or otherwise be provided with an adequate opportunity to gather similar probative evidence.'
We granted certiorari and now affirm the Court of Appeals.
Respondent, Western Alfalfa Corporation, has asked this court to review the constitutionality of Colorado's visible emissions standard, alleging that the opacity test is inaccurate and unfair. Both the District Court and the Court of Appeals have resolved this question against the respondent.
At the time of the violations, the former Air Pollution Control Act, 1967 Perm.Supp., C.R.S. 1963, 66--29--1, Et seq, prescribed two methods for determining whether a violation of Colorado's air quality standards had occurred. Section 66--29--5(2)(b) proscribed the discharge into the atmosphere of a contaminant 'as dark or darker (than the) shade as that designated as No. 2 on the Ringelmann Chart . . .' Section 66--29--5(2)(c) provided that no contaminant shall be discharged into the atmosphere 'of opacity equal to or greater than smoke described in paragraph (b) of this subsection' (referring to shades as dark or darker than No. 2 on the Ringelmann Chart). In other words, the latter section established an 'equivalent opacity' standard, making it unlawful to discharge any contaminant more opaque than its equivalent on the Ringelmann Chart. The Ringelmann Chart is applicable to black or very dark smoke, whereas the equivalent opacity standard is applicable to white smoke. The Ringelmann Chart is used to evaluate the color of the smoke, and the equivalent opacity technique is used to evaluate the amount of light which passes through a nonblack emission. A visual opacity reading may be made without the aid of the Ringelmann Chart.
The respondent was charged with a violation of the equivalent opacity standard, 1967 Perm.Supp., C.R.S. 1963, 66--29--5(2)(c). At that time, a 40% Opacity limitation was in effect. 3
Respondent argues, and petition concedes, that equivalent opacity is not directly correlated to the density, volume, or amount of particulate matter being carried in the emission. Nevertheless, the opacity standard provides an accurate reflection of the amount of visible contaminants being carried in a smoke plume. The public enjoyment of the air resources of this state is a stated legislative objective of the Air Pollution Control Act. See 1967 Perm.Supp., C.R.S.1963, 66--29--2. This objective is partially realized not only when the volume of particulate matter is reduced, but also when maximum visual clarity is achieved in any given air space.
The validity of equivalent opacity tests has been upheld against constitutional attack in numerous cases. See Portland Cement Association v. Train, 168 U.S.App.D.C. 248, 513 F.2d 506 (1975); City of Portland v. Lloyd A. Fry Roofing Company, 3 Or.App. 352, 472 P.2d 826 (1970); People v. International Steel Corp., 102 Cal.App.2d Supp. 935, 226 P.2d 587 (1951); Annot. Air Pollution: Evidence as to Ringelmann Chart Observations, 51 A.L.R.3d 1026.
In City of Portland v. Lloyd A. Fry Roofing Company, 3 Or.App. 352, 472 P.2d 826 (1970), the Oregon Court of Appeals approved the following language:
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