*1 CORPORA STATES STEEL UNITED below),
TION, (Petitioner ENVIRONMENTAL
WYOMING
QUALITY COUNCIL, Appellee below).
(Respondent
No. 4792. Wyoming.
Supreme Court
March Lee,
James B. Robert Bingham A. Schroeder, Stephen Parsons, K. Behle & Latimer, City, Lake Salt and John A. Mac- Pherson, Golden, Rawlins, of MacPherson & appellant. Mendicino, Gen., Atty. Marilyn V. Frank Kite, Gen., Atty. S. Senior Asst. and Steve Freudenthal, Gen., F. Atty. Cheyenne, Asst. appellee. GUTHRIE, J., Before C. and McCLIN- TOCK, RAPER, ROSE, THOMAS and JJ. ROSE, Justice. appeal attempted concerns an
amendment or thе Wyoming En- vironmental Council’s turbid- standard,1 ity appellant- denial of waters, Wy- I II 1. Section Water Standards for “In all Class wastes of origin oming, provides: than natural shall not cause the *2 750 request for a variance SUBJECT-MATTER JURISDICTION States Steel’s
United
1,1975,
May
appel-
standard. On
from this
begin with the principle
We
petition
the
before
lant filed
right
judicial
review of administrative
standard, and
turbidity
the
amend
entirely statutory,
decisions is
and that or
Public notice
for a variance.
application
agency
ders of an administrative
are not
appellant’s peti-
held on
hearing to be
of a
City
reviewable unless made so
statute.
30, 1975, the
July
On
given.2
tion
Commission,
Milwaukee v. Public
Service
thereto, appellant
was held. Prior
hearing
111,
167,
104 N.W.2d
11 Wis.2d
4
hearing
would not be Davis,
Treatise,
was informed
Administrative Law
28.-
§§
and,
18,
case
as a
as a contested
28.19. As stated in Klein v. Fair Em
conducted
Commission,
ployment Practices
31 Ill.
result,
hearing appellant
was denied
at
473,
370,
App.3d
334 N.E.2d
374:
right
cross-examine witnesses or sub-
briefs,
witnesses were not sworn.
mit
“Each statute must be carefully exam
legislature’s
issued a resolution
ined to discover the
Subsequently, the
intent to
judicial
restrict
review of
petition
application
administrative
denying appellant’s
(Heikkila
(1953),
action.
v. Barber
345
petition
filed a
for a variance.
229,
603,
972.)
U.S.
73 S.Ct.
97 L.Ed.
this decision. The district
for review of
While it is often said that barring consti
petition
for lack of sub-
court dismissed
tutional
impediments
legislature
can
respect
to the
ject-matter
jurisdiction
judicial
preclude
(See Mount St.
review
standard,
summary
and entered
turbidity
Mary’s Hosp.
(1970),
v. Catherwood
26
E.Q.C. with re-
in favor of the
judgment
493, 511, 518-519,
N.Y.2d
311 N.Y.S.2d
a variance. We will
to its denial of
spect
(Fuld,
J.,
agency practicable as soon as either shall REVIEW OF PROCEDURES deny petition writing (stating in its it is Appellant contends entitled to denials) for the or initiate rule- reasons judicial regularity review as to the with making proceedings accordance used, procedures regardless applica 9-276.21], section 3 The action of [§ 9-276.24, Appellant bility supra. com denying petition shall be final agency E.Q.C.’s plains specifically of the failure to [Emphasis review.” and not conduct the in this case as it would supplied] case, trial-type in a contested with all the Appellant apparently that if the concedes rights hearing. associated with such a E.Q.C. simply petition denied its it would court indicated Bоard of Trustees not be entitled to review under this District of School No. 3 v. District Bound- however, Appellant, statute. contends Board, 413, 417, ary Wyo., 489 P.2d E.Q.C. simply deny petition; did not “ precise . . statu- regardless of rather, E.Q.C. rule-making initiated tory open authority, courts must remain which are proceedings reviewable. To bol- adminis- power with inherent to review argumеnt, appellant points ster its to the alleged to be trative action when it is says public purpose notice authority arbitrary.” without was “to hear a from the Corporation Wyo- Steel to amend the U.S. 9-276.24, supra, Pursuant to § ming Quality turbidity standards.” proce- given authority promulgate was disposition petitions recognize What fails to is that dures for agеncy. No rule-making proceedings, to initiate amend or rules of the order 9-276.21, at the specific procedures must be existed time there such petition was filed.3 Neverthe- CONSTITUTIONALITY the instant OF less, general procedure had VARIANCE STATUTE which it was bound follow. Cole- separately requested a City Gary, 220 Ind. man N.E.2d from the variance 107; and Davidson v. Review Board of standards, 35-502.45, pursuant to § W.S. Division, Employment Security the Indiana Cum.Supp. The variance appli 311 N.E.2d Ind.App. (1) was premised cation beliefs that 3, Rules of Practice and Proce- Section apparent there was no harm from appel Department Quali- of Environmental dure — ty lant’s discharges; practical there was no (hereinafter Rules), prоvided that all means available to control an increase in hearings before “shall be held turbidity; (3) the permit, N.P.D.E.S. issued 3(e) to these rules.” provided the Rules a hearing when Agency, the Environmental Protection it requested “shall be conducted as a con- adequate protection contained in the form *4 case.” 27 of the pro- tested Section Rules of total suspended solids effluent limita operation vided for exclusions from the of tion; necessary and the variance was rules, other as follows: E.Q.C. hardship. avoid economic The de “Nothing in these Rules shall be con- application ground nied the prohibiting strued as the Environmental water-quality prohibited by variances were Quality Council and the Administrators 35-502.45(o), provides: supra, which § Land, of the Divisions Air of or Water “nothing in this section shall be con- designee holding or their from permit application strued to an for a proceedings, hearings, informational or application water variance. The for conferences the purpose aiding for of Council or the Administrator in permits solely ascertain- must be made under ing determining necessary and facts for provisions of W.S. 35-502.19.” performance respective and [sic] Initially, permits it is noted that all under Any person believing duties. ag- himself Wyoming Environmental Quality Act rieved a determination made [sic] variances, exception allow of the Administrator or dеsignee his of the Comment, water-quality permits. “Wyo- following Council as informational [sic] 1973,” ming Environmental Act of proceeding, hearing, or conference and L.Rev., XII, Wyo. Land & Water Vol. No. thereto, who is may otherwise entitled upon filing (1974). The basic reason for complaint, or obtain merits, a full or review upon the required bring distinction is that it is which matter shаll be de heard and tried regu- Act into with the federal [Emphasis novo.” supplied] lations, only provide which for “schedules of As previously, merely noted held compliance” variances. 40 C.F.R. —not informational allowed (1976). —as 124.44 The purported flexibility § 27—in Section order to determine whether procedure, then, of a variance provided аs denied, appellant’s petition should be an inherent part permit system of the as rule-making only initiated. The not 35-502.19, W.S.1957, outlined in procedures, did not violate its own it ex- Cum.Supp.: opportunity tended an “(a) administrator, after consulta- present appel- its view in a form to which board, advisory tion with the shall recom- lant was entitled. There is not othеrwise rules, mend to the director regulations, therefore, nothing, appear that would standards permit systems promote arbitrary procedure adopted about the here- in. of this act purposes 35-502.1 to [§§ adopted then-existing pro- 3. It is tracts from the fact noted that the has since procedures remedy apparent providеd informational-type new set of cedures ings. hear- confusion sub- caused the instant case. This sequent adoption procedures way de- no “(E) rules, environment; regulations, upon stan- The effect Such 35-502.56]. prescribe: systems shall permit “(vii) dards Such time may reasonable as specifying necessary operators standards for owners and “(i) rules, рollution sources to long-term short-term maximum regulations, permits.” standards or minimum pollution, concentrations of dissolved concentrations permissible Appellant challenges the constitutionality matter, permis- other oxygen and 35-502.45(o), supra, grounds: on three waters of the of the temperatures sible a prohibition 1. That of water varianсes state; violates Article of the limitations “(ii) Effluent standards Constitution, in Wyoming that it is an or con- amounts the maximum specifying exercise of absolute and arbitrary and wastes pollution centrations power; into the waters discharged may be 2. That the prohibition denies due proc- state; by denying ess a fair opportunity to per- issuance of “(iii) fоr the Standards challenge applicable water-quality installation, construction, modifi- mits for standards; and public water operation cation prohibition 3. That the equal pro- denies treatment sewerage system, supply and tection of the laws discriminating facility, works, system or disposal between water and other pollutant contributing pol- causing or capable of dischargers. lution; The first and arguments second relate to the definition “(iv) Standards *5 appellant’s ability challenge to the water- the certifica- competency and technical We quality question. standards find that public for operating personnel of tion appellant adequate opрortunities had to sewerage systems, supply water and challenge original promulgation of the disposal systems works and treatment turbidity standard under the statutes —it operation determining that and for avail itself of those merely oppor- failed to of certified supervision under the shall be Appellant opportunity had the tunities. to personnel; participate promulgation process in the per- of the issuance “(v) Standards W.S.1957, 9-276.21(a)(2), (§ 1975 Cum. to section as authorized mits proce- there Shpp.), and to assure that Pollution 402(b) of the Federal (§ 9-276.21(c), W.S.1957, compliance dural it and as Act as amended Control Cum.Supp.). Appellant oppor- had amended; may be hereafter review, tunity to obtain if it was standards, “(vi) recommending In by adopted. in fact the rule affected Sec- the admin- rules, regulations, permits, 9-276.32(a), It had the supra. opportu- tion shall consider advisory and board istrator nity to seek the amendment or of the bearing circumstances all the facts and 9-276.24, supra. Given these rule. Section pollution upon the rеasonableness present various means which to including: involved views, appellant’s rights we fail to see how degree inju- “(A) The character and process due have been in- procedural to health and ry to or interference fringed. animals, wild- people, being well argues that it has been affected; life, life aquatic plant life and variances equal protection denied because value of “(B) The social and economic dischargers. pollutant are available other pollution;
the source of that there must be some differ It is true in the “(C) priority of location basis a reasonable ence which furnishes involved; area as to the different lеgislation different County “(D) and Miller v. Board of practicability The technical classes. Commissioners, reducing Wyo. 337 P.2d economic reasonableness 269; Gray, Wyo., and Bell v. 377 P.2d eliminating pollution; the source of and justified true, however, adequately it is law is its failure that also It is it has been meet its burden to that it has been burden show show appellant’s treatment, resulting treatment, disparate disparate subjected subjected and protection. Johnson equal rule that is a rational in a denial of water 818-819; Schrader, Wyo., special legisla- 507 P.2d a permitting classification Commissioners, County per- v. Board treatment. I convinced that a Miller tive am be more at 271. There must 337 P.2d supra, given compli- son оr firm the benefit of what assertion of nothing than a bald more ance schedule which does making its ar- discriminatory. In is comply thinks than additional time to with a it ignores the fact gument, appellant position far is in a different than a standard which will compliance can schedule seek granted or firm a variance. For person give time additional procedural are to example, specific steps 35-502.- standard. being when a is followed variance con- essentially is 19(a)(vii), supra. result for renewal. Once additional sidered grant of as is obtained the same compliance granted time under a schedule is duration limited in variance —which incorporat- are expired rights hаs no similar 35-502.45(e) to renewal. Sections person that a in the statute. It follows ed W.S.1957, Al- (f), Cum.Supp. to seek a given right who is different, is though the form treatment schedule, granted, is not essen- in the re- appreciable no difference we see position person same as a who tially the ' Even if the sult which can be obtained. granted a variance. For and is me seeks we find disparate, were somewhat results is an incorrect state- quoted language to distin- there are rational reasons it the law. I ment of Since find guish pollutant between this case I unnecessary to result in am including: nature dischargers, the different protest the inclusion of compelled to resources; the difference of the natural agree I not state that do proposition, dischargers within pollutant the number with it. class; and the in the extent each difference vari- damage which can from the result discharges. ous
Affirmed.
THOMAS, Justice, concurring, specially RAPER, Justice, joins. whom with HENRIKSEN, Jr., Otto Chester in the case and I concur result in this (Defendant below), substantially majority opin- all agree proposition ion. I cannot with the majority the last paragraph
stated in Wyoming, Appellee The STATE as follows: (Plaintiff below). “ * * * making argument, ap- In No. 4772. ignores the it can seek a pellant fact that give Supreme addi- Wyoming. schedule which will Court of time to tional March 85~502.19(a)(vii), su- standard. as
pra. essentially This result is the same by the of a variance—
is obtained which is duration and limited (f), 35-502.45(e) and to renewal. Sections ” * * * W.S.1957, 1975 Cum.Supp. holding has
For me the equal under the protection
not been denied