U.S. Steel Corp. v. Wyoming Environmental Quality Council

• Decision Date: 02 March 1978
• Docket Number: No. 4792,4792
• Citation: 575 P.2d 749
• Parties: UNITED STATES STEEL CORPORATION, Appellant (Petitioner below), v. WYOMING ENVIRONMENTAL QUALITY COUNCIL, Appellee (Respondent below).
• Court: Wyoming Supreme Court

Page 749

575 P.2d 749

UNITED STATES STEEL CORPORATION, Appellant (Petitioner below), v. WYOMING ENVIRONMENTAL QUALITY COUNCIL, Appellee (Respondent below).

No. 4792.

Supreme Court of Wyoming.

March 2, 1978.

James B. Lee, Robert A. Bingham and Stephen K. Schroeder, of Parsons, Behle & Latimer, Salt Lake City, and John A. MacPherson, of MacPherson & Golden, Rawlins, for appellant.

V. Frank Mendicino, Atty. Gen., Marilyn S. Kite, Senior Asst. Atty. Gen., and Steve F. Freudenthal, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

This appeal concerns an attempted amendment or repeal of the Wyoming Environmental Quality Council's water turbidity standard, ¹ and a denial of appellant- The following questions are now before this court for resolution:

                United States Steel's request for a variance from this standard.  On May 1, 1975, appellant filed before the E.Q.C. a petition to amend or repeal the turbidity standard, and an application for a variance.  Public notice of a hearing to be held on appellant's petition was given.  2  On July 30, 1975, the hearing was held.  Prior thereto, appellant was informed that the hearing would not be conducted as a contested case and, as a result, at the hearing appellant was denied the right to cross-examine witnesses or submit briefs, and witnesses were not sworn.  Subsequently, the E.Q.C. issued a resolution denying appellant's petition and application for a variance.  Appellant filed a petition for review of this decision.  The district court dismissed the petition for lack of subject-matter jurisdiction with respect to the turbidity standard, and entered summary judgment in favor of the E.Q.C. with respect to its denial of a variance.  We will affirm this disposition
                

1. Whether the district court had jurisdiction to review the denial of appellant's petition.

2. Whether the E.Q.C. followed its own rules of procedure in denying the petition.

3. Whether § 35-502.45(o ), W.S.1957, 1975 Cum.Supp., prohibiting water quality variances, is constitutionally infirm.

SUBJECT-MATTER JURISDICTION

We begin with the principle that the right of judicial review of administrative decisions is entirely statutory, and that orders of an administrative agency are not reviewable unless made so by statute. City of Milwaukee v. Public Service Commission, 11 Wis.2d 111, 104 N.W.2d 167, 174. See, 4 Davis, Administrative Law Treatise, §§ 28.18, 28.19. As stated in Klein v. Fair Employment Practices Commission, 31 Ill.App.3d 473, 334 N.E.2d 370, 374:

"Each statute must be carefully examined to discover the legislature's intent to restrict judicial review of administrative action. (Heikkila v. Barber (1953), 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972.) While it is often said that barring constitutional impediments the legislature can preclude judicial review (See Mount St. Mary's Hosp. v. Catherwood (1970), 26 N.Y.2d 493, 511, 518-519, 311 N.Y.S.2d 863, 260 N.E.2d 508 (Fuld, C. J., Concurring)), such intent must be made specifically manifest, and persuasive reason must exist to believe such was the legislative purpose. (Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681.) Only upon a showing of clear and convincing evidence of contrary legislative intent should the courts restrict access to judicial review. Rusk v. Cort (1962), 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809."

The applicable statute is found in the Wyoming Administrative Procedure "(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review . . . ." (Emphasis supplied)

Act, § 9-276.32(a), W.S.1957, 1975 Cum.Supp., which provides in pertinent part:

Since we are dealing with a petition to amend or repeal an administrative rule, we must refer to § 9-276.24, W.S.1957, 1975 Cum.Supp., which provides:

"Any interested person may petition an agency requesting the promulgation, amendment or repeal of any rule and may accompany his petition with relevant data, views and arguments. Each agency may prescribe by rule the form of such petition and the procedure for their (its) submission, consideration and disposition. Upon submission of such a petition, the agency as soon as practicable either shall deny the petition in writing (stating its reasons for the denials) or initiate rule-making proceedings in accordance with section 3 (§ 9-276.21). The action of the agency in denying a petition shall be final and not subject to review." (Emphasis supplied)

Appellant apparently concedes that if the E.Q.C. simply denied its petition it would not be entitled to judicial review under this statute. Appellant, however, contends that the E.Q.C. did not simply deny its petition; rather, the E.Q.C. initiated rule-making proceedings which are reviewable. To bolster its argument, appellant points to the public notice which says that the purpose of hearing was "to hear a petition from the U.S. Steel Corporation to amend the Wyoming Water Quality turbidity standards."

What appellant fails to recognize is that in order to initiate rule-making proceedings, there must be compliance with § 9-276.21, W.S.1957, 1975 Cum.Supp., which provides in pertinent part:

"(a) Notice; hearing Prior to an agency's adoption, amendment, or repeal of all rules . . . the agency shall:

"(1) Give at least 20 days notice of its intended action. . . . " (Emphasis supplied)

The public notice herein gave no indication of the E.Q.C.'s "intended action" it merely stated there was to be a hearing to consider appellant's petition pursuant to § 9-276.24, supra. It appears, then, that the E.Q.C. was merely seeking information on which to base a decision to grant or deny appellant's petition. If the petition had been granted, then and only then rule-making proceedings would be initiated pursuant to § 9-276.21, supra. The denial of appellant's petition, after such an informational hearing was not, therefore, subject to judicial review except as hereinafter noted and the district court correctly dismissed appellant's appeal for lack of subject-matter jurisdiction.

REVIEW OF PROCEDURES

Appellant contends it is entitled to judicial review as to the regularity of the procedures used, regardless of the applicability of § 9-276.24, supra. Appellant complains specifically of the E.Q.C.'s failure to conduct the hearing in this case as it would in a contested case, with all the trial-type rights associated with such a hearing.

This court indicated in Board of Trustees of School District No. 3 v. District Boundary Board, Wyo., 489 P.2d 413, 417, that

" . . . regardless of precise statutory authority, courts must remain open with inherent power to review administrative action when it is alleged to be without authority or arbitrary."

Pursuant to § 9-276.24, supra, the E.Q.C. was given authority to promulgate procedures for the disposition of petitions to amend or repeal rules of the agency. No such specific procedures existed at the time the instant petition was filed. ³ Nevertheless, the E.Q.C. had general procedure which it was bound to follow. See, Coleman v. City of Gary, 220 Ind. 446, 44 N.E.2d 101, 107; and Davidson v. Review Board of the Indiana Employment Security Division, 160 Ind.App. 221, 311 N.E.2d 472, 474.

Section 3, Rules of Practice and Procedure Department of Environmental Quality (hereinafter Rules), provided that all hearings before the E.Q.C. "shall be held pursuant to these rules." Section 3(e) of the Rules provided that when a hearing was requested it "shall be conducted as a contested case." Section 27 of the Rules provided for exclusions from the operation of other rules, as follows:

"Nothing in these Rules shall be construed as prohibiting the Environmental Quality Council and the Administrators of the Divisions of Land, Air or Water Quality or their designee from holding informational proceedings, hearings, or conferences for the purpose of aiding the Council or the Administrator in ascertaining and determining facts necessary for the performance and (sic) respective duties. Any person believing himself agrieved (sic) by a determination made by the Administrator or his designee of the Council following as (sic) informational proceeding, hearing, or conference and who is otherwise entitled thereto, may upon filing a petition or complaint, obtain a full hearing or review upon the merits, which matter shall be heard and tried de novo." (Emphasis supplied)

As noted previously, the E.Q.C. merely held an informational hearing as allowed by Section 27 in order to determine whether appellant's petition should be denied, or rule-making initiated. The E.Q.C. not only did not violate its own procedures, it extended an opportunity to appellant to present its view in a form to which appellant was not otherwise entitled. There is nothing, therefore, that would appear to be arbitrary about the procedure adopted herein.

CONSTITUTIONALITY OF VARIANCE STATUTE

Appellant separately requested a variance from the turbidity water quality standards, pursuant to § 35-502.45, W.S.1957, 1975 Cum.Supp. The variance application was premised on the beliefs that (1) there was no apparent harm from appellant's discharges; (2) there was no practical means available to control an increase in turbidity; (3) the N.P.D.E.S. permit, issued by the Environmental Protection Agency, contained adequate protection in the form of a total suspended solids effluent limitation; and (4) the variance was necessary to avoid economic hardship. The E.Q.C. denied the application on the ground that water-quality variances were prohibited by § 35-502.45(o ), supra, which...