Conoco, Inc. v. State Dept. of Health of State of Okl.

• Decision Date: 27 July 1982
• Docket Number: No. 56070,56070
• Citation: 1982 OK 94,651 P.2d 125
• Parties: CONOCO, INC., a corporation, Appellee, v. The STATE DEPARTMENT OF HEALTH OF the STATE OF OKLAHOMA, The State Board of Health of the State of Oklahoma, Air Quality Council of the Department of Health of the State of Oklahoma, Appellants.
• Court: Oklahoma Supreme Court

Page 125

651 P.2d 125

1982 OK 94

CONOCO, INC., a corporation, Appellee, v. The STATE DEPARTMENT OF HEALTH OF the STATE OF OKLAHOMA, The State Board of Health of the State of Oklahoma Air Quality Council of the Department of Health of the State of Oklahoma, Appellants.

No. 56070.

Supreme Court of Oklahoma.

July 27, 1982.

As Corrected Aug. 5 and Aug. 19, 1982.

As Modified on Denial of Rehearing Oct. 4, 1982.

Appeal from the District Court, Kay County; Lowell Doggett, Judge.

District court action, under 75 O.S.1981 § 306 of the Administrative Procedures Act, for declaratory relief from state regulation controlling emissions from industrial sources. Trial court rendered judgment against the defending agencies.

REVERSED.

Susan M. Otto, Staff Attorney, Oklahoma Air Quality Service, Jan Eric Cartwright, Atty. Gen. of Oklahoma by John F. Percival, Asst. Atty. Gen., for appellants.

Guy Clark, Northcutt, Northcutt, Raley, Clark, Gardner, Hron & Northcutt, Ponca City, for appellee.

OPALA, Justice:

The dispositive issue in this case is whether an aggrieved party who fails to perfect a timely appeal from a final order of an administrative agency later may challenge the validity of the rule on which the order was issued by means of an action for declaratory judgment. We answer in the negative.

I.

Conoco, Inc., appellee (plaintiff below), owns and operates a petroleum refinery in Ponca City, Oklahoma. As part of the refining process, Conoco operates a fluid catalytic cracking unit, ¹ which processes a portion of the crude product through the use of an alumina-silica catalyst. This catalyst is circulated in the system and then cleaned in a regenerator unit and reused. In the regenerator unit, the carbon or carbonaceous material adhering to the catalyst is removed. The heavier particles fall out of the air stream which is then exhausted through a stack. Some of the catalyst breaks up and is released into the atmosphere; and of the particles so released, a portion of them are small enough to be inhaled by human beings.

Appellants (referred to as Agency herein)--the State Department of Health, the State Board of Health and the Air Quality Council--are charged by the provisions of the Oklahoma Clean Air Act ² with the duty to promulgate rules and regulations for the control and abatement of air pollution and for the establishment of health and safety tolerance standards. Also incumbent upon Agency is the attainment and maintenance of nationally applicable standards for certain pollutants, including particulate matter, promulgated by the federal government under the Federal Clean Air Act. ³

Pursuant to these duties, Agency adopted a series of regulations for the control and abatement of particulate emissions from industrial sources. Regulation 7, the basis for the present action, pertains to the control of smoke, visible emissions and particulates, and limits the density of plumes emanating from pollutant facilities. As originally adopted in 1971, Regulation 7 limited facilities to a Number 1 on the Ringelmann Scale, a system of gauging the density of black and gray plumes. Facilities which emitted plumes other than black or gray had to meet equivalent "opacity", i.e., the degree to which emissions reduce the transmission of light passing through the plume and obscure the view of an object in the background. As calibrated, Ringelmann Number 1 equals 20% opacity.

Originally, sources which failed to achieve 20% opacity could still satisfy the regulation's requirement by demonstrating that they were operating within process weight limits established by Regulation 8. These limits define permissible particulate emissions in terms of pounds per hour. In 1975, Agency proposed an amendment to Regulation 7 to exclude this alternative means of compliance and to make standard the requirement that sources achieve either Ringelmann 1 or 20% opacity, depending upon the color of the plume. Conoco's representative appeared at a public hearing held September 9, 1975 regarding the modification of Regulation 7 and expressed unequivocal support for the change. Subsequently, the amendment was adopted on December 6, 1975.

The amendment to Regulation 7 directly affected Conoco's facility, whose "catcracking" unit ordinarily generated emissions measuring between 25-35% opacity. Cognizant of its continuing violation, Conoco petitioned the Air Quality Council on May 23, 1979 for a variance from the requirements of Regulation 7 in order to provide time for sufficient engineering studies and construction of necessary pollution control equipment. Because of the expense involved in premature closure of the operation, Conoco requested the variance until June 1, 1983, so that control equipment could be installed during a regularly-scheduled maintenance shut-down, or "turn-around".

On July 10, 1979, the Council approved the variance but conditioned it for the one-year period permitted by law, ⁴ subject to Conoco's submitting an expeditious compliance schedule within 120 days. In addition, the Council considered Conoco's complaint concerning the necessity for the Regulation 7 standard and upheld the regulation. This action subsequently was approved by the Board of Health on September 8, 1979. No appeal from either of these decisions was taken.

On June 10, 1980, Conoco sought declaratory and injunctive relief in the trial court and challenged the "validity and applicability of Regulation 7 ... and the proposed enforcement of Regulation 7 in its application" to Conoco's catcracking unit. Agency objected to the jurisdiction and venue of the action, but these objections were overruled. After a trial to the court and a judgment in favor of Conoco, this appeal followed.

II.

Agency is subject to the state's Administrative Procedures Act [APA]. ⁵ That act provides for judicial review of final orders of agencies subject to its provisions. 75 O.S.1981 § 318(1). ⁶ "Order" is defined in the act as "all or part of the final or intermediate decision, whether affirmative, negative, injunctive or declaratory in form, by an agency in any matter other than rule making." ⁷ There can be no doubt that Agency's decision to grant Conoco a variance and to require eventual compliance with the requirements of Regulation 7 was a "final" decision on the matter--the administrative process was at an end and legal obligations had been imposed as a result of that process. ⁸ Any judicial review of that decision, therefore, was available under § 318. ⁹ Further review of a final judgment of the district court may be had by way of appeal to this Court. ¹⁰

In the instant case it is undisputed that Conoco failed to perfect such an appeal from the final decision rendered by Agency. The Air Quality Council conditionally granted Conoco's request for a variance, subject to Conoco's submitting an expeditious schedule for compliance with Regulation 7, on July 10, 1979. This action was approved by the Board of Health on September 8, 1979. ¹¹ No petition was filed in the district court until June 10, 1980, eleven months after the decision of the Council and more than nine months after approval by the Board.

It is well established that the time limits within which to appeal from an adverse decision are jurisdictional in nature and that if an appeal is brought untimely the court has no power to decide the case. This rule applies to judicial review of administrative actions to the same extent as it does to court judgments and decrees. ¹² We reaffirmed this principle recently in State ex rel. Okl. Employment Security Comm'n. v. Emergency Physicians, Inc., ¹³ where we said:

"What we have before us is a petition for judicial review of an order of an administrative board. The procedural requirements are mandatory and must be complied with before a District Court can acquire jurisdiction for review. Where as here the statute requires that a proceeding to review an administrative body's decision shall be commenced within a specified period, timely filing is jurisdictional. Since the plaintiff ... did not file a timely petition in the Office of the Clerk of the District Court ... the District Court ... had no jurisdiction over the attempted suit for judicial review, and it was error for the court below not to have dismissed plaintiff's suit for that reason."

What we said there applies with equal force here. When administrative relief was finally granted, Conoco's variance came to it with the burden of having to submit a compliance schedule. Conoco accepted that burden by its failure to appeal but later sought to be relieved of compliance altogether when it brought this case. Its efforts came too late.

Although the terms of § 318 do not explicitly provide that they are to be the exclusive means of judicial review, we believe that this is implicit in the statute. Section 318(1) states that any aggrieved person "is entitled to certain, speedy, adequate and complete judicial review thereof under this act, but nothing in this section shall prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions. " [Emphasis added]. The Revised Model Act of 1961, upon which our statute was based, states that this section shall not limit other means of judicial review which are "provided by law. " ¹⁴ [Emphasis added]. The earliest drafts of our act contained the same language, ¹⁵ but this wording was eliminated prior to the enactment of the statute. Thus, the Act envisions a single plan of review, which is to be exclusive of all others except those types which rest on constitutional provisions. Since a declaratory judgment proceeding is not one derived from "constitutional provisions," it may not be used in lieu of the proceedings under § 318. Moreover, in Martin v. Harrah Independent School District, ¹⁶ we held that:

"[W]hen the statute prescribes a particular method of review of an administrative action a litigant must seek judicial review in...