Missoula City-County Air Pollution Control Bd. v. Board of Environmental Review
| Citation | 282 Mont. 255,937 P.2d 463 |
| Decision Date | 17 April 1997 |
| Docket Number | No. 96-262,CITY-COUNTY,96-262 |
| Parties | MISSOULAAIR POLLUTION CONTROL BOARD, Petitioner and Appellant, v. BOARD OF ENVIRONMENTAL REVIEW, Respondent and Respondent, and Stone Container Corporation, Intervenor and Respondent. . Heard and |
| Court | United States State Supreme Court of Montana |
Robert L. Deschamps, III, County Attorney, Martha E. McClain, Deputy County Attorney, William A. Rossbach, Missoula, for Appellant.
Joseph P. Mazurek, Attorney General, W.D. Hutchison, Assistant Attorney General, Helena, Jeanne M. Bender and W. Scott Mitchell, Holland and Hart, Billings, Cindy Younkin, Board of Environmental Review, Helena, for Respondents.
The Missoula City-County Air Pollution Control Board (Local Board) appeals a decision of the Fourth Judicial District Court, Missoula County, dismissing its petition for judicial review and declaratory judgment. We reverse and remand for further proceedings consistent with this Opinion.
The issues are:
1. Did the District Court err in ruling that the Local Board does not have standing to challenge the validity of administrative rules adopted by the Board of Environmental Review (State Board)?
2. Did the court err in ruling that the Local Board's first amended petition was not timely filed?
3. Did the court err in ruling that the State Board's September 1994 final order was moot?
Stone Container Corporation operates a kraft pulp mill near Missoula, Montana. The Local Board is the local air pollution authority for the City and County of Missoula, approved by the State Board pursuant to § 75-2-301, MCA. The Local Board does not have general regulatory authority over Stone Container, however, because Stone Container is an air pollution source that emits more than 250 tons of regulated pollutants per year. See § 75-2-301(4)(c), MCA. Instead, the Montana Department of Environmental Quality, formerly the Montana Department of Health and Environmental Sciences (Department), is responsible for issuing air quality permits to Stone Container. The State Board is responsible for adopting, amending, and repealing rules for the administration, implementation, and enforcement of the Clean Air Act of Montana. See § 75-2-111, MCA.
This case originated from a dispute between Stone Container and the Department over modifications the Department made to the air quality permit for Stone Container's kraft pulp mill. In December 1992, Stone Container appealed to the State Board concerning changes by the Department in the most recent permit the Department had issued for the mill.
The Department and Stone Container subsequently stipulated to the resolution of all but one of the provisions of the permit which Stone Container had appealed to the State Board. The remaining unresolved issue was the Department's inclusion in the permit of a 20 percent opacity limit for emissions from recovery boiler number 4 at the kraft pulp mill. Opacity is defined as the degree, expressed in percentage, by which emissions reduce the transmission of light and obscure the view of an object in the background. ARM 17.8.101(27).
Stone Container petitioned the State Board for a declaratory ruling interpreting ARM 16.8.1404 (now ARM 17.8.304), Visible Air Contaminants, and its application to recovery boiler number 4 at the pulp mill. The Local Board petitioned to intervene in the action before the State Board. Stone Container opposed the petition to intervene, and the State Board subsequently denied the petition.
After holding a hearing on Stone Container's petition for a declaratory ruling, the State Board voted to interpret ARM 16.8.1404 to allow Stone Container a 35 percent opacity limit for recovery boiler number 4. The State Board entered its written order so ruling on September 16, 1994. On October 6, 1994, the Department petitioned for rehearing.
On October 17, 1994, the Local Board, acting as a "person" aggrieved by the State Board's September 16 order, filed a petition for judicial review in the Fourth Judicial District Court. The court granted Stone Container's motion to intervene in the judicial review proceeding. In addition, the court granted the State Board's motion to stay the proceeding pending the outcome of an administrative rule amendment process then being conducted by the State Board.
The State Board adopted amendments to the administrative rules in August 1995. The amendments made kraft pulp mills (Stone Container was the only kraft pulp mill in Montana) exempt from ARM 16.8.1404. The amendments provided opacity standards and monitoring requirements in amendments to ARM 16.8.1413 and 16.8.1429 (now ARM 17.8.302 and 17.8.321).
Stone Container moved to withdraw its petition which was then still pending before the State Board. Stone Container and the Department also stipulated to request that the State Board withdraw its September 16, 1994 order. At its December 1995 meeting, the State Board voted to dismiss Stone Container's petition.
Meanwhile, on November 7, 1995, the Local Board filed in the District Court its first amended petition for judicial review and declaratory judgment, seeking, in addition to judicial review of the State Board's September 16, 1994 order, a declaratory judgment that the amended rules were invalid. Stone Container moved the District Court to dismiss the amended petition pursuant to Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief can be granted. The court granted the motion on grounds that the Local Board lacked standing to bring an action on behalf of the Missoula public to challenge the rule-making procedures leading to the State Board's adoption of the challenged amendments. The court also ruled that the State Board's actions and final ruling in the administrative declaratory proceeding had been rendered moot by the 1995 amendments to the rules. It further ruled that the petition's request for judicial review of rule-making procedures was untimely. The Local Board appeals. As it did in District Court, Stone Container appears as an intervenor pursuant to Rule 24(a)(2), M.R.Civ.P.
A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pled allegations in the complaint. In considering the motion, the complaint must be construed in the light most favorable to the plaintiff, whose allegations of fact must be taken as true. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. The determination that a complaint does not state a claim upon which relief can be granted is a conclusion of law which this Court reviews to determine whether the district court is correct. Lockwood, 900 P.2d at 317.
Did the District Court err in ruling that the Local Board does not have standing to challenge the validity of administrative rules adopted by the State Board?
In Simon v. Eastern Ky. Welfare Rights Org. (1976), 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450, 460, the United States Supreme Court defined standing as requiring (and assuming justiciability of the claim) that the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision. This Court has stated that the concept of standing arises from two different doctrines: (1) the discretionary doctrine aimed at prudently managing judicial review of the legality of public acts, and (2) the doctrine of constitutional limitations drawn from the definition of federal judicial power in Article III of the United States Constitution and the definition of state judicial power in Article VII, Section 4, Montana Constitution. Olson v. Department of Revenue (1986), 223 Mont. 464, 469-70, 726 P.2d 1162, 1166.
With respect to the prudential basis for standing, this Court has stated that the trial court's discretion cannot be defined by hard and fast rules, and that the importance of the question to the public "surely is an important factor." Committee for an Effective Judiciary v. State (1984), 209 Mont. 105, 110, 679 P.2d 1223, 1226. The constitutional aspect of standing requires the plaintiff to show that plaintiff has been personally injured or threatened with immediate injury by the alleged constitutional or statutory violation. Olson, 726 P.2d at 1166.
On the question of whether the Local Board has standing to bring this action, the District Court stated [T]he Missoula Control Board has failed to show it has standing to prosecute such an action. The Missoula Control Board asserts in its First Amended Petition that it has standing because it has the role of serving as an advocate for the interests of the citizenry of Missoula County regarding the quality of Missoula's air and is charged with the responsibility to protect such interests on behalf of the Missoula public in the State of Montana Air Quality Control Implementation Plan (commonly referred to as "SIP").
... In sum, a local control board is a legislatively-authorized, Department-approved agent of the Department, and as such has only those powers specifically allowed by the Legislature and specifically delegated to it by the Department. Nothing in either Part 3 of Title 75, Chapter 2, nor in the SIP, authorizes the local control board to prosecute an action in an advocacy role on behalf of the citizenry of Missoula County.
The Local Board disagrees with that ruling.
At the outset, the Local Board disputes the District Court's statement that it is an agency of the Department. The Local Board points out that the powers of a local air pollution control board are set forth at § 75-2-301(3), MCA, as part of the Clean Air Act of Montana. The extent of the Local Board's responsibilities and the limits to its powers are contained in the Montana Air Quality Control Implementation Plan (SIP). The SIP provides:
[The Local Board's] air pollution control program ... is...
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