Petition for a Writ of Certiorari — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

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PRE! OURT. UL Qe G99 °° OCT 24 3973

—— SS ee JR. Ot Bey

IN THE ;

SUPREME COURT OF THE

UNITED STATES

Octoser Term, 1973

NO. A-333

AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI

JOHN P. MOORE

Attorney General

WILLIAM TUCKER

Assistant Attorney General

Attorneys for Petitioner

Em nm and

ea Tee 104 State Capitol

Legal Interns Denver, Colorado 80203

Asuisting Telephone: 892-2351

ee

oe

EASTWOOD PRINTING CO. @ 2854 LARIMER STREET ®© DENVER, COLORADO

INDEX

Pace

INTRODUCTION 1

REFERENCE TO OPINIONS BELOW 2

GROUNDS ON WHICH JURISDICTION

IS INVOKED ...... 2-3

QUESTIONS PRESENTED FOR REVIEW ..... 3

Pr

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 3-4

STATEMENT OF THE CASE 4-5

GROUNDS AND REASONS FOR GRANTING

WRIT OF CERTIORARI 5-10

CONCLUSION 10

APPENDIX A—Opinion of the Colorado

Court of Appeals dated

April 3, 1973 Appendix A-1

B—Order of the Supreme Court of

the State of Colorado dated

June 25, 19173 Appendix B-1

C—Mandate of the Colorado Court

of Appeals dated June

26, 1973 Appendix O-1

D—Air Pollution Control Act of

the State of Colorado ....Appendix D-1

INDEX (Continued)

Pace

E—Decision off Air Pollution

Variance Board entered

January 31, 1970 sindbis -Appendix E-1

F—Decision of Trial Court dated

November 18, 1971 ............Appendix F-1

STATUTES CITED

Bacon v. Texas, 163 U.S. 207, 41 L.Ed. 132 (1896) ........ 3

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.

1727, 18 L.Ed.2d 930 5, 6, 8, 9, 10

See v. City of Seattle, 387 U.S. 541, 87 S.Ct.

1737, 18 L.Ed. 2d 948 ... 5, 6, 8, 9, 10

United States v. Biswell, 406 U.S. 311, 32 L.Ed.2d

87, 92 S.Ct. (1972) " 7, 8, 9

United States v. Del Campo Baking Mfg. Co. (D.C.

Del.,) 345 Fed. Supp. 1371 (1972 8-9

345 Fed. Supp. 1371 (1972) 8-9

United States v. Hofbrauhaus of Hartford (D.C.

Conn.) 313 Fed. Supp. 544, 548 (1970) ...................... 8

OTHER AUTHORITIES

Air Pollution Control Act of the State

of Colorado : 4, 8,9

Federal Clean Air Act, as amended, 42 U.S.C.,

Section 1857, et. seq. 4

Fourth Amendment to the United States

Constitution Title 28, U.S. Code,

Section 1257 2

SUPREME COURT OF THE

UNITED STATES

Ocroser Term, 1973

NO. A-333

AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI

¥

1. INTRODUCTION

Petitioner, Air Pollution Variance Board of the State

of Colorado, respectfuly requests that a writ of certiorari

issue to review the judgment and opinion of the Colo-

rado Court of Appeals in the case of Air Pollution Vari-

ance Board of the State of Colorado v. Western Alfalfa

Corporation, Case No. 71-494. The Supreme Court of the

State of Colorado refused a writ of certiorari in the case

by an Order dated June 25, 1973.

: 2

"* I, OPINIONS BELOW

A. The Opinion of the Colorado Court of Appeals

dated April 3, 1973, is attached hereto as Appendix

‘“‘A’’. A Petition for rehearing was timely filed and

denied by the Colorado Court of Appeals on April

24, 1973.

B. A petition for writ of certiorari was timely filed

with the Supreme Court of the State of Colérado

which petition was denied by the Supreme Court pur-

suant to an Order dated June 25, 1973. A copy of

that Order is attached hereto as Appendix ‘‘B’’.

Mandate was issued by the Colorado Court of Appeals

dated June 26, 1973. A copy of that order is attached

hereto as Appendix ‘“‘C”., ~

ill. GROUNDS ON WHICH

JURISDICTION IS INVOKED

A. The date of the decision of the Colorado Court

of Appeals is April 3, 1973. A Petition for Re-Hearing

was timely filed with the Colorado Court ef Appeals,

which petition was denied on April 24, 1973. A Petition

for Writ of Certiorari to the Supreme Court of the State

of Colorado was timely filed and denied by that court on

June 25, 1973. The mandate of the Court of Appeals of

the State of Colorado was issued on June 26, 1973.

.B. .The statutory provision concerning jurisdiction

of this court to review the decision of the state court by

writ of certiorari is Title 28, U.S. Code, Section 1257.

C. A judgment of ap inferior state court may be re-

viewed where a writ of error to the highest court of the

state has been denied. Bacon v. Texas, 163 U.S. 207, 41

L.Ed. 132 (1896).

IV. QUESTIONS PRESENTED FOR REVIEW

A. Does failure to notify an industrial pollutor of a

Ringelmann or opacity reading at the time the reading

is taken or prior to the reading violate the provision of

the Fourth Amendment to the United States Constitution?

B. Is it necessary to obtain the consent of an indus-

‘rial polluter prior to taking a Ringelmann or opacity

reading from the premises of the particular industry, and

if the consent is not obtained, is the taking of the Ringel-

mann or opacity reading a sufficient invasion of the right

of privacy of the industry to constitute a violation of the

Fourth Amendment to the United States Constitution?

C. Where inspections and the taking of opacity and

Ringelmann readings are necessary to- further urgent

federal and state interests to protect the environment pur-

suant to federal and state-law, is the possibility of abuse

and the threat toxprivacy of such dimension that the tak-

ing of a Ringelmann or opacity reading without a warrant

or consent a violation of the Fourth Amendment to the

United States Constitution?

V. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Article IV of the Amendments to the Constitu-

tion of the United States provides that:

‘“‘That right of the people to be secure in their per-

sons, houses, papers and effects against unreasonable

4

searches and seizures shall not be violated; and no

warrant shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.’’

B. The Air Pollution Control Act of the State of

Colorado which was in effect at the time of this case

(a copy of which is attached hereto as Appendix ‘‘D’’).

C. The federal Clean Air Act, as amended, 42 U.S.C.,

Section 1857, et. seq.

_ VI. STATEMENT OF THE CASE

Respondent, Western Alfalfa Corporation, was issued

a Cease and Desist Order on June 16, 1969 from the Divi-

sion of Administration of the Colorado Department .of

Health advising them that the emissions from three (3) of

their plants in northern Colorado were not in compliance

with the: Air Pollution Control Act. Western Alfalfa

Corporation requested a hearing before the Air Pollution

Variance Board of the State of Colorado for a determina-

tion of whether they were in fact in violation of the

emission standards.

The Board held a hearing in September of 1969. At

the conclusion of the hearing, the Board took the matter

_ under advisement and then entered a Decision on January

31, 1970 holding that Western’s emissions were, in fact, in

violation of the Emission Standards in effect at that time.

A copy of that decision is attached hereto as Appendix

se’,

The Ringelmann and opacity readings that were taken

by the inspector for the division, were taken from a posi-

tion on the premises of Western Alfalfa Corporation. The

trial court reversed the decision of the Board. A copy

of the Trial Court’s decision is attached hereto as Appen-

dix ‘‘F’’, The Court of Appeals affirmed the decision of

the trial court.

Vil. GROUND)S AND REASONS FOR

GRANTING WRIT OF CERTIORARI

The Colorado Court of Appeals stated in its Decision

that:

“In the instant casse, the evidence that resulted in

issuance of the Ceasse and Desist Order was gathered

by a field inspector- from the Division, who entered

the premises of Wes3tern on June 4, 1969, without the

knowledge or consemt of anyone from Western, and

made his readings. JIt was not until Western received

the Cease and Desisst Order that it was aware of the

fact that someone hiad been on its premises collecting

evidence for a case: against it. This fact convinces

us that the hearimg afforded Western lacked the

fundamental elementts of due process of law, since the

secret nature of the: investigation foreclosed Western

from putting on anyy rebuttal evidence.

We conclude that tthe act of conducting tests on the

premises of Westerm without either a warrant or the

consent of anyone ffrom Western, constituted an un-

reasonable search. Camera v. Municipal Court, 387

U.S. 523, 87 S.Ct. 17727, 18 L.Ed.2d 930.

See v. City of Searttle, 387 U.S. 541, 87 S.Ct. 1737,

18 L.Ed.2d 943. In Camara, the Supreme Court made

it clear that searchees by administrative agencies must

be reasonable and nnust either be based upon the con-

6

sent of the person who owns the premises, or must be

pursuant to a warrant. It was further made clear that

this rule is not confined to criminal prosecutions. On

the facts of this case, it was necessary for the field

investigator to comply with this requirement.—

Since violations of the act can be based upon emis-

sions aggregating three (3) minutes or more during

any hour, 1967 Perm. Supp., C.R.S. 1963, 66-29-5(a),

and since the evidence by its very nature is contin-

ually dissipating, we conclude that it is constitution-

ally mandatory in this type of case that the party

accused be aware of the taking of tests and measure-

ments on its premises at the time they are made.”’

Emissions of the type being emitted by Western

Alfalfa can be observed either on or off the premises of

the Respondent and require that a violator be notified

either prior to or at the time of taking an opacity or

Ringelmann reading. Ringelmann and opacity readings

are taken pursuant to statutory provisions for the pro-

tection of the public health, welfare and safety. The pur-

pose of the Fourth Amendment to the Constitution of the

United States is to safeguard the privacy and security

of individuals against arbitrary invasions by govern-

mental officials. No invasion of privacy or security of an

individual is involved when an inspector simply takes an

opacity or Ringelmann reading of an emission being

emitted by an air pollution violator for all the world to

see. This court in the Camara and See cases was con-

cerned about an unauthorized and unwarrented inspec-

tion of a condition which could not be easily and quickly

- changed. Therefore the obtaining of a warrant with a

neutral magistrate setting out the limits and extent of

such a search would not hamper the effective enforcement

of the law in question.

7

In the recent case of United States v. Biswell, 406

U.S. 311, 32 L.Ed.2d. 87, 92 S.Ct. (1972) this court

held that a search of a firearms dealer’s storage area

under the provision of a statute which authorized official

entry during business hours into

‘“‘the premises of any firearms or ammunition —

dealer —for the purpose of inspecting or examining

(1) any records or documents required to be kept —

and (2) any firearms or ammunition kept or stored

by such — dealer —at such premises’’

without a warrant did not constitute a violation of the

Fourth Amendment to the United States Constitution.

The United States Supreme Court approved the search

and seizure in the Biswell case, supra., on the basis that:

1. The search and seizure was not accomplished by

an unauthorized force (page 91 of opinion).

2. The legality of the search depended not on con-

sent but on the authority of a valid statute (page 92 of

opinion).

3. The search and seizure was important in the fed-

eral effort to prevent violent crime and to assist states in

regulating the fire arms traffic within their borders (page

_ 92 of opinion) (emphasis supplied)

4. If inspections were to be effective and serve as a

credible deterrent, unannounced even frequent inspections

were necessary (page 92 of opinion).

5. Inspections pose only limited threats to the deal-

cr’s justifiable expectations of privacy (page 92 of

opinion).

8

-

6. Regulatory inspections further urgent federal in-

terest and the possibilities of abuse and threat to privacy

are not-of impressive dimensions (page 93 of opinion).

In United States v. Hofbrauhaus of Hartford (D.C.

Conn.) 313 Fed. Supp. 544, 548 (1970) the court noted

that under a statutory inspection scheme, if the limits

and purpose of inspection were defined so that they con-

tain a standard of reasonablenes nothing would be served

by compelling individualized review by a magistrate. The

assumption is that operators in highly regulated areas are

advised of the governing law.

In the case of Western Alfalfa the enforcement of-

ficials for the Air Pollution Control Act were proceeding

under a federal and state statutory scheme for inspection

of a regulated industry to protect the public health, wel-

fare and safety of the citizens of the state from, pollution.

A Ringelmann test is not a search of property, persons, or

conditions secreted away behind walls or enclosed within

a building, it is a determination of the opacity of a plume

of smoke which the inspected business is issuing forth for

the whole world to see. Under the decision of the Colo-

rado Court of Appeals it would appear that a air pollu-

tion violator would have to be notified if a Ringelmann or

opacity reading is being taken off of his premises as well

as on his premises or it would constitute a violation of the

Fourth Amendment.

In United States v. Del Campo Baking Mfg. Co. D.C.

Del.,) 345 Fed. Supp. 1371 (1972) the Petitioners, attempt-

ing to rely upon Camara and See, supra, argued that a

warrantless code enforcement inspection violates the

Fourth Amendment unless not mere consent but a know-

ing and voluntary consent is given to an administrative

9 . + oo

search. The Court responded that the case was governed

by Biswell, supra, and that under the Biswell case since a

search based upon a statutory scheme of regulation de-

pends not upon consent but upon the statute, the fact that

permission is granted in ignorance of the Fourth Amend-

ment proscription against unreasonable search and seizure

is a fact which is irrelevant (at Page 1376).

It appears that the Colorado Court of Appeals may

have been more concerned about notice being given to

Western Alfalfa than a violation of the Fourth Amend-

ment to the United States Constitution. A notice prob-

lem would appear to be more of a discovery issue and

there is no question that Western received a notice of the

violation in ample time prior to the hearing before the

Air Pollution Variance Board.

If it is necessary to notify a potential violator of the

Air Pollution laws prior to taking an opacity or Ringel-

mann reading, the pollutor has the potential of thwart-

ing the effectiveness of the enforcement of the law by re-

ducing the capacity or input of his plant during the taking

of the Ringelmann or opacity reading. In the case of

violations of the open burning regulation, the potential

violator could simply refuse access to his premises, set

fire to the material which he desires to burn, and the

Western Alfalfa decision would preclude an investigator

from testifying as to what he observed in court in order

to enforee the Air Pollution Control Act.

The Western case is distinguishable from the See and

Camara cases, supra, on the following basis:

Tt. No criminal prosecution is involved in the West-

ern case.

2. The violation in question is of the type that is

10

strictly controlled by federal and state statute in order

to protect the public health, welfare and safety.

3. The federal and state statutes’ standards provide

that it is a violation of the law if the emissions exceed

the standards for a period of three minutes, therefore,

this is the type of a violation which must be noted and

recorded during a very short period of time, whereas in

the See and Camara cases the violations were of the type

that could not be changed or concealed easily.

4. A minimum, if any, invasion of privacy is in-

volved in taking a Ringelmann or opacity reading.

Vill. CONCLUSION

It is respectfully submitted that the Ringelmann and

opacity readings taken in the Western Case were neces-

sary to further an urgent federal and state interest and

the possibility of abuse and the threat to privacy are not

of impressive dimensions in an inspector simply reading

the density of an emission which is obvious and can be

seen from either on or off the premises. The Western

case falls more within the purview of the Biswell case,

supra, and subsequent decisions by this court set out

herein. The Ringelmann and opacity readings were taken

pursuant to federal and state statutory scheme and no

consent or warrant is necessary prior to the taking of such

a Ringelmann and opacity reading.

Respectfully submitted,

JOHN P. MOORE

Attorney General

WILLIAM TUCKER

Assistant Attorney General

Attorneys for Petitioner

Ellen Emerson and :

Harold Pope 104 State Capitol

Legal Interns Denver, Colorado 80203

Assisting Telephone: 892-2351

Appendix A-1

APPENDIX A

COLORADO COURT OF APPEALS

NO. 71-494

COURT OF APPEALS

STATE OF COLORADO

Opinion filed and judgment entered on the 3rd day

of April, 1973. John Clarence Seifert, Clerk of the Court.

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Petitioner-Appellee,

vs.

AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Respondent-A ppellant.

Appeal from District Court, Weld County

Honorable Donald A. Carpenter, Judge

DIVISION II JUDGMENT AFFIRMED

Silverstein, C.J., Dwyer and Pierce, JJ.

Linde, Thomson, Van Dyke, Fairchild & Langworthy,

George D. Blackwood, Kansas City, Missouri; Houtchens,

Houtchens & Dooley, S. Robert Houtchens, Greeley, Colo-

rado; Lee, Bryans, Kelly & Stansfield, Donald D. Cawelti,

Denver, Colorado; Attorneys for the Petitioner-Appellee.

Duke W. Dunbar, Attorney General; William Tucker,

Assistant Attorney General, Denver, Colorado; Attorneys

for the Respondent-Appellant.

Opinion by JUDGE PIERCE.

Appendix A-2

On June 16, 1969, Western Alfalfa Corporation re-

ceived a cease and desist order from the Division of Ad-

ministration of the Colorado Department of Health (Divi-

sion) advising them that the emissions from three of

their plants in Northern Colorado were not in compliance

with the Air Pollution Control Act (Act), and ordering

them, pursuant to the provisions of 1967 Perm. Supp.,

C.R.S. 1963, 66-29-10(3), to cease and desist from any

further violations of the Act. Within ten days from

receipt of the cease and desist order, Western filed with

the Air Pollution Variance Board (Board) a denial that it

was in violation of the Act.

The Board held a hearing in September of 1969. At

this hearing, a witness for the State testified that he had

made observations on the premises of Western on June

4, 1969, from which he concluded that Western was in

violation of the Act. The readings taken purportedly

registered darker in shade than a No. 2 on the Ringle-

mann chart, contrary to the terms of 1967 Perm. Supp.,

C.R.S. 1963, 66-29-5.

The Ringlemann chart is an instrument, assigning

numerical values to various gradations of smoke color as

they appear on the chart. A party using the chart matches

the color and density of the alleged smoke pollutant under

observation with the numbered example on the chart. This

test is sanctioned by the Act as the minimum valid

method of determining whether or not the Act is being

violated, and is presumptively valid. Fray Roofing Co.

v. State Department of Health, Colo. , 499

P.2d 1176. This method of measuring air pollution is

generally sanctioned. See City of Portland v. Fry Roofing

Co., 3 Ore. App. 352, 472 P.2d 826 for a collection of cases

approving the Ringelmann chart.

Western countered this evidence with Ringelmann

readings taken approximately one year earlier by a con-

sulting engineer hired by Western, which showed no viola-

tion. They also offered the results of a sophisticated test

conducted at their plant by an independent engineering

firm some months after they were issued the cease and

desist order. Western contends that this test established

that they were not in violation of the Act.

The Board concluded that Western’s operations were

in violation of the Act. It further determined that it

would not accept the report of the independent engineer-

ing firm because the method of testing was not acceptable

to the Division as required by the statute. 1969 Perm.

Supp., C.R.S. 1963, 66-29-5(2)(e).

Thereafter, Western filed suit in the district court

pursuant to the terms of 1967 Perm. Supp., C.R.S. 1963,

66-29-13, seeking to have the cease and desist order set

aside as not being in compliance with the law. The trial

court reversed the Board. We affirm the conclusion and

judgment of the trial court.

The Act, as it then existed,’ established the approach

that the Division was to use in searching out and stop-

ping violations. Specially, the Division had the duty to

determine, by means of field studies and air samples, the

ambient air standard in any area in the state. 1967 Perm.

Supp., C.R.S. 1963, 66-29-8. This included the authority

to enter and inspect any property for the purpose of in-

vestigating either an actual or a suspected source of air

pollution. 1967 Perm. Supp., C.R.S. 1963, 66-29-8(2)(d).

* antrety, anal te etetel ne ear ction hes been repealed in its

entirety, and re-enacted as the Air Pollution Control Act. 1971

Perm. Supp., C.R.S. 1963, 66-31-1 et . The new Act has been

upheld from a constitutional attack in Fry Roofing Co. v. State

Department of Health, _. Colo, _._, 499 P.2d 1176.

Appendix A-4

In the instant case, the evidence that resulted in issu-

ance of the cease and desist order was: gathered by a

field inspector from the Division, who entered the prem-

ises of Western on June 4, 1969, without the knowledge

or consent of anyone from Western, and made his read-

ings. It was not until Western received the cease and

desist order that it was aware of the fact that someone

had been on its premises~collecting evidence for a case

against it. This fact convinces us that the hearing af-

forded Western lacked the fundamental elements of due

process of law, since the secret nature of the investiga-

tion foreclosed Western from putting on any rebuttal

evidence.

We conclude that the act of conducting tests on the

premises of Western without either a warrant or the con-

sent of anyone from Western, constituted an unreasonable

search. Camara v. Municipal Court, 387 U.S. 523, 87 S,

Ct. 1727, 18 L. Ed. 2d 930; See v. City of Seattle, 387 U.S.

541, 87 S.Ct. 1737, 18 L. Ed. 2d 943. In Camara, the

Supreme Court made it clear that searches by adminis-

trative agencies must be reasonable and must either be

based upon the consent of the person who owns the prem-

ises, or must be pursuant to a warrant. It was further

made clear that this rule is not confined to criminal

prosecutions. On the facts of this case, it was necessary

for the field investigator to comply with this requirement.

We note that this provision was added to the Act by an

amendment subsequent to the events in question. 1969

Perm. Supp., C.R.S. 1963, 66-29-8(2) (d).

Western “could not effectively rebut the evidence

against it since it had no representative present at the

time the test was administered, nor did it have any knowl-

edge of the nature of its emissions on the date in question.

Appendix A-5

This is particularly important since the Board made it

very clear that the only evidence which was probative of

whether Western was in violation of the Act was evidence

which would rebut the evidence of the alleged violation

on June 4, 1969. Since violations of the Act can be based

upon emissions aggregating three minutes or more during

any hour, 1967 Perm. Supp., C.R.S. 1963, 66-29-5(a), and

since the evidence by its very nature is continually dis-

sipating, we conclude that it is constitutionally mandatory

in this type of case that the party accused be aware of

the taking of test and measurements on its premises at the

time they are made.

Had Western known of the field observer being on

its premises on the date of the investigation, it would have

had a reasonable opportunity to effectively exercise its

rights of confrontation at the hearing before the Board.

' 1969 Perm. Supp., C.R.S. 1963, 3-16-4. Imposition of the

Camara rule assures fundamental fairness in this type

of situation. The failure to provide this protection re-

sulted in a violation, in this case, of the Fourth Amend-

ment to the United States Constitution.

Judgment affirmed.

CHIEF JUDGE SILVERSTEIN and

JUDGE DWYER CONCUR.

-

Appendix B-1

APPENDIX B

SUPREME COURT

Clerk’s Office, State of Colorado, Denver 80203

Case No. C-382

June 25, 1973

a

‘Air Pollution Verience Beord

Vv.

Western Alfalfa Corp.

Copy of an order entered in the above numbered and

titled case June 25, 1973, is enclosed.

Your very truly,

RICHARD D. TURELLI, Clerk

By Judi Malora, Deputy

Mr. John Seifert, Clerk, Colorado Court of Appeals,

607 State Social Services Bldg., Denver, Co. 80203

Honorable John P. Moore, Attorney General, Mr.

Wliliam Tucker, Assistant Attorney General, State Capi-

tol, Denver, Co. 80203

Lee, Bryans, Kelly & Stansfiedl, Suite 990, 550 15th

St., Denver, Co. 80202 :

Linde, Thomson, Van Dyke, Fairchild & Langworthy,

Columbia Union National Bank Bldg., 900 Walnut St.,

Kansas City, Missouri 64106

Houtchens, Houtchens & Dooley, 1007 9th Ave,

Greeley, Co. 80631

Appendix B-2

IN THE SUPREME COURT OF THE

STATE OF COLORADO

Case No. C-382

April Term, 1973

ATR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Petitioner,

vs. .

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI to

the Court of Appeals.

After review of the record, the briefs and the opinion

of the Court of Appeals,

IT IS ORDERED by this court that said petition

he, and the same hereby is, denied.

June 25, 1973

By the Supreme Court

Sitting En Banc

SUPREME COURT

State of Colorado

Certified to be a full, true and correct copy

June 25, 1973

‘Sourt Seal

RICHARD D. TURELLI,

Clerk of the Supreme Court

By Judi Malora,

Deputy Clerk

Appendix C-1

APPENDIX Cc

COURT OF APPEALS

State of Colorado, 1575 Shermhan Street

Denver, Colorado 80203 (303) 892-2641

OPINION OF THE COLORADO COURT OF APPEALS

ANNOUNCED AND JUDGMENT ENTERED, April 3,

1973.

Oral Arguments held, January 30, 1973.

Before Harry S. Silverstein, Jr., Chief Judge, William F.

Dwyer and Charles D. Pierce, Judges.

MANDATE

No. 71-494

Tr. Ct. No. 19974

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Petitioner-A ppellee,

vs.

AIR POLLUTION VARIANCE BOARD OF

THE STATE OF COLORADO,

Respondent-Appellant.

This cause came on to be heard on the record on |

appeal from the District Court of the County of Weld,

and was argued by counsel, on consideration whereof, it is

Appendix C-2

ordered that the judgyment of said Court is AFFIRMED.

JOHN CLARENCE SEIFERT,

Clerk of the Court.

ANNA MAE TOMSIC,

Deputy

COUJRT OF APPEALS —

STATTE OF COLORADO

Court Seal

Certified to be» a full, true and correct copy

Daate June 26, 1973

John Clarence Seifert, Clerk of Court of Appeals

By Anna MMae Tomsic, Deputy Clerk

SIEM ROMO PRA A TURBO RRSP ERIS

Appendix D-1

APPRENDIX D

(Reproduced by the Colorado State

Department of Public Health)

AIR POLLUTION CONTROL ACT

AMENDING THE

‘“‘ATR POLLUTION CONTROL ACT”’.

1967 Amendments and Changes to Chapter 45, Colorado

Session Laws 1966.

(*Denotes Changes)

66-29-1

Section 1.—SHORT TITLE.—This act shall be

known and may be cited as the ‘‘Air Pollution Control

Act.”’

66-29-2

Section 2.— LEGISLATIVE DECLARATION. — It

is hereby declared to be the policy of the state of Colorado

to maintain a reasonable degree of purity of the air re-

sources of the state, which shall be consistent with the

public health, welfare, and public enjoyment thereof, the

industrial development of the state, the propagation and

protection of human, plant, and animal life, and the pro-

tection of physical property and other resources. To that

end it is the purpose of this act to require the use of all

available practical methods to reduce, prevent, and control

air pollution in the state of Colorado and to maintain

a cooperative program between the state and local units

of government. It is further declared that the prevention,

abatement, and control of air pollution in this state are

affected with a public interest and that the provisions of

this act are enacted in the exercise of the police powers of ©

SRR eee) OP

Appendix D-2

this state for the purpose of protecting the health, peace,

safty, and general welfare of the people of this state.

66-29-3 ©

Section 3.— DEFINITIONS. — (1) When used in

this act, the following words and phrases shall have the

meanings ascribed to them in this section:

(2) ‘‘Air pollution variance board’’ means the air

pollution variance board created by section 7 of this act.

(3) ‘‘Division’’ means the division of administration

of the state department of public health.

(4) ‘Person’? means any individual, public or pri-

vate corporation, partnership, association, firm, trust,

estate, the state or any department, institution, or agency

thereof, any municipal corporation, county, city and

county, or other political subdivision of the state, or any

other legal entity whatsoever which is recognized by law

as the subject of rights and duties.

(5) ‘‘Air contaminant’? means a dust, fume, gas,

nist, smoke, vapor (other than water vapor alone), pollen,

or any combination thereof.

(6) ‘‘Air pollution’? means the presence in the

atmosphere of one or more air contaminants in quantities,

of characteristics, and of a duration throughout the

state or throughout such areas of the state as shall be

affected thereby, which are injurious to human, plant, or

animal life or to property, or which unreasonably inter-

fere with the comfortable enjoyment thereof.

(7) ‘‘Air contamination’’ or ‘‘emission’’? means the

discharge into the atmosphere of one or more air con-

taminants which contribute to a condition of air pollution.

Appendix D-3

(8) ‘‘Air contamination source’? means any source

whatsoever at, from, or by reason of which there is

emitted or discharged into the atmosphere any air con-

taminant.

(9) ‘‘Ambient air’’ is the surrounding or outside

air.

(10) ‘‘Air cleaning device’? means any method,

process, or equipment which removes, reduces, or renders

less noxious air contaminants discharged into the at-

mosphere. :

(11) ‘‘Area of the state’’ means any geographical

area of the state that may be so designated by the divi-

sion, as provided in section 8 (1) (c) of this act.

(12) ‘‘Gas’’? means a formless fluid which occupies

space and which can be changed to a liquid or solid state

only by increasing pressure with decreased or controlled

temperature, or by decreased temperature with increased

or controlled pressure.

(13) ‘‘Ringelmann’’ means the method of estimating

smoke density described in U.S. bureau of mines informa-

tion circular 7718, dated August 1955, by means of the

Ringelmann chart.

(14) ‘‘Air pollution control authority’’ means any

person or agency given authority by the division or by a

local governmental unit with respect to air pollution

control.

(15) ‘Local air pollution law’’ means any law, ordi-

nance, resolution, code, rule, or regulation adopted by the

governing body of any home rule city, city of the second

&

Appendix D4

class, town, county, or city and county pertaining to the

prevention, control, and abatement of air pollution, in-

cluding, but not limited to, the adoption of emission stand-

ards such as set forth in section 5 of this act.

66-29-4

Section 4 — AMBIENT ATR STANDARDS. — (1)

The following standards of ambient air quality define the

limits of air contamination by particulates and gases

above which limits the ambient air is hereby declared to be

unacceptable :

(2)(a) Kind of particulate

Measnrable limits

averaged for any

three-month period

Suspended particulates

120 micrograms per

cubic meter

Coefficient of haze

0.5 Coh units

(b)(i) Sampling stations shall be so located and

operated as to conform as nearly as possible to the follow-

ing criteria:

*(ii) Located in the central business district of a city

or community and at such other places as the division

determines desirable, approximately twenty-five to fifty

feet above ground level and where the air being sampled

is representative of the ambient air.

(ii) Samples to be collected on a regular three-day

basis.

Appendix D-5

(3){a) Gases

Measurable limits based on one per

cent of the time during any three-

month period

Total oxidant

.1 part per million for one hour using

a potassium iodide method of testing

Oxides of nitrogen

.1 part per million for one hour

Sulfur Dioxide inhetecrcesiicionsectcrhtsetiinttnaronivne

.. parts per million for one hour —

or —

1 part per million for twenty-four

hours .

(b) Sites and conditions of gas sampling shall be so

chosen as to realistically represent the exposures of per-

sons and property which might be affected.

66-29-5

Section 5.— EMISSION STANDARDS IN DESIG-

NATED AREAS OF THE STATE.— (1) Subject to

such variances as may be granted pursuant to section 11

of this act, the emission standards set forth in subsections

(2) through (6) of this section shall be in full force and

effect in each area of the state designated by the division

pursuant to section 8 (1) (c) of this act, immediately

upon such designation.

- (2)(a) No person shall discharge, or cause or permit

to be discharged, into the atmosphere, from any single

source of emission, any air contaminant for a period ag-

gregating more than three minutes during any hour

which is:

(b) As dark or darker in shade as that designated

is

Appendix D4

as No. 2 on the Ringelmann chart, as defined in section

3 of this act; or

(c) of opacity equal to or greater than smoke de-

scribed in paragraph (b) of this subsection; or

(d) Of any share or opacity greater than that speci-

fied in paragraphs (b) or (¢) of this subsection and desig-

uated under any other nationally accepted measuring sys

tem which is comparable to the Ringelmann method,

(3) No person shall permit solid matter in combus-

tion gas from any fuel-burning equipment in excess of

v.85 pounds per one thousand pounds of such gas, ad-

justed to twelve per cent carbon dioxide, or solid particu-

lates in any other gas in excess of 0.85 pounds per one

thousand pounds of undiluted gas, to escape into the at-

mosphere or to pass any convenient measuring point in a

chimney, breeeching system, or other discharge system.

(4)(a) No person shall burn or permit to be burned

on any open premises owned or controlled by him, or on

any public street, alley, or other land adjacent to such

premises, any rubbish, waste paper, wood, or other flam-

mable material, unless a permit therefor shall first have

been obtained from the appropriate authority enforcing -

air pollution control standards. In granting or denying

the issuance of any such permit, said aathority shal] base

its action on the location and proximity of such burning

to any building or other structure, the potential eontribu-

tion of such burning to air pollution in the area when the

same may violate any standard in this section, climatic

conditions on the day or days of such burning, and eom-

pliance by the applicant for the permit with applicable

Appendix D-7

fire protection and safety requirements of the local au-

thority or area.

(b)(i) This subsection shall not apply to:

(ii) Burning in the course of any agricultural opera-

tion in the growing of crops;

(iii) Fires used for noncommercial cooking of food

for human beings or for instructural or recreational

purposes ; |

(iv) Incinceration of paper and other trash or resi-

dential premises by the owner or occupant thereof;

(v) Smokeless flares or safety flares for the com-

bustion of waste gases; or

3

vi) Flares used to indicate some danger to the

public.

*(c) On and after January 1, 1970, no person shall

burn any combustible refuse in any incinerator except in

an approved multiple-chamber incinerator or in equipment

found by the division in advance of such use to be equally

effective for the purpose of air pollution control as an

approved multiple-chamber incinerator. No person shall

operate, or cause to be operated, any incinerator in such

manner as to create emissions which violate any provision

of this section.

(5)(a)(i) Any storage, holding, stationary tank, res-

ervoir, or other container having a capacity of forty

thousand or more gallons, constructed on or after the ef-

fective date of this act and used for gasoline or any

petroleum distillate having a vapor pressure of one and

Appendix D-8 =e

one-half pounds per square inch absolute, or greater,

under actual storage conditions, shall be designed and

equipped with one of the following vapor loss control

devices, properly installed, in good ‘working order, and in

operation.

(ii), A floating roof consisting of a pontoon type

or doublt-deck type roof, resting on the surface of the

liquid contents and equipped with a closure seal, or seals,

to close the space between the roof edge and tank wall.

The control equipment provided for in this paragraph

shall not be used if the gasoline or petroleum distillate

has a vapor pressure of eleven pounds per square inch

absolute, or greater, under actual storage conditions. All

tank gauging and sampling devices shall be gas-tight ex-

cept when gauging or sampling is taking place.

(iii) A vapor balloon, or vapor dome, designed in

accordance with accepted otandards of the petroleum

industry.

(iv) Other equipment of equal efficiency; provided,

that plans therefore are submitted to and approved by

the appropriate air a. control authority.

(b) wuseiie or butane, and similar products, shall

be stored in pressure tanks maintaining working pressures

sufficient at all times to prevent hydrocarbon vapors or

gas loss to the atmosphere, or at refrigerated low tem-

perature, or in low pressure storage equipped with vapor

collection and compression equipment designed to prevent

loss of hydrocarbon vapor or gas to the atmosphere.

(c) Any petroleum storeg tank, other than those

covered by paragraph (b) of this subsection, which is con-

Appendix D-9

structed or extensively remodeled on.or after the effective

date of this act shall be equipped with a submerged filling

device.

(d) All facilities for dock loading of petroleum prod-

ucts, other than those pertaining to products covered by

paragraph (b) of this subsection, which are in existence

or constructed on or after the effective date of this act,

having a vapor pressure of one.and one-half pounds per

square inch absolute, or greater, at loading temperature

shall provide for submerged filling.

(6)(a) No person shall cause or permit any emis-

sion of sulphur dioxide which results in average ground-

level concentrations of sulphur dioxide at any given point

in excess of one part per million, based on volume, of

surphur dioxide in a twenty-minute period of any hour

and average exposure shall not exceed three-tenths parts

per- million, based on volume, in any. eight-hour period.

Such limitations shall not apply to ground-level concentra-

tions occurring on the property from which emission oc-

curs; provicied, that such property, from the point of

emission to the point of any concentration, is controlled by

the person responsible for. such emission.

(b) Except as provided in subsection (6)(a) of this

section, no person shall cause or permit the emission of

gas containiug sulphur dioxide in excess of two thousand

parts per million, based on volume. All sampling of ex-

haust gases shall be conducted following techniques desig-

nated by the appropriate air pollution control authority.

For the purposes of this paragraph, all sulphur present in

gaseous compounds containing oxygen shall be deemed to

be present as sulphur dioxide, and analyses of samples

taken to determine-the amount of sulphur dioxide in ex:

Appendix D-10

haust gases shall be made as specified by the air pollu-

tion control authority. Tests for determining compliance

with this paragraph shall be for at least fifteen consecu-

tive minutes or ninety per cent of the time of actual

source operation whichever is less.

(c)(i) Emissions in excess of the limits specified in

paragraph (b) of this subsection shall not constitute a

violation of this subsection so long as the requirements of

paragraph (a) of this subsection and the following condi-

tions are met:

(ii) Any person intending to operate under the pro-

visions of this paragraph (c) shall so notify the air pollu-

tion control authority in writing prior to such emission.

(iii) Any person operating pursuant to this para-

graph (c) shall provide for at least three recording sul-

phur dioxide monitoring stations, properly located, as

well as a recording meteorological station equipped to

record wind speed and direction.

(iv) All reports of data obtained from such instru-

ments shall be furnished to the air pollution control au-

thority at the end of each month. Whenever such data

indicate any emission in excess of the limits specified in

paragraph (a) of this subsection, said person shall fur-

nish the air pollution control authority evidence that

proper action has been taken to reduce or prevent further

such excess emissions.

66-29-6

Section 6.— LOCAL GOVERNMENT — AUTHOR-

ITY.—(1) Home rule cities, cities of the second class,

towns, counties, and cities and counties are hereby author-

ized to enact local air pollution laws. Every such law shall

yi thot oe Me 9 iE ie GA Spee Sd SLEEP LARE AS He

glee Saran 5s)

. CG ee eT aes

Appendix D-11

provide for variances, hearings, judicial review and in-

junctions consistent with sectiogs 11, 12, 13, and 14 of this

act and may include standards which are the same as or

more restrictive than the standards set forth in this act;

provided, nothing herein contained shall prohibit any such

local law from controlling any air contamination or air

contamination source which is not subject to control under

the provisions of this act.

i

(2). All loeal air pollution laws and orders issued

pursuant thereto in existence at the time this act takes

effect are hereby validated as though adopted pursuant

to the authority of section 6 (1); provided, if any such

local law or order fails to meet the requirements of this

act, the governing body under whose authority such law

or order was promulgated shall have until July 1, 1966,

to amend, modify, or repeal the same so that it will meet

the requirements of this act, but if not so amended, modi-

fied, or repealed, the same shall be superseded by this act.

(3) To the extent a local air pollution law adopted

hy a county is more restrictive than such a law adopted

by any city or town within such county, the county law

shall apply in lieu of the city or town law to the extent of

the inconsistency.

(4) Application, operation, and enforcement of valid

local air pollution laws shall be completely independent

of but may be concurrent with the application, operation,

and enforcement of this act. The appointment of an air

pollution control authority by the division shall in no way

affect the duties and responsibilities given the same per-

son or agency under a local air pollution law, and the ap-

pointment of an air pollution control authority by a local

governmental unit shall in no way affect the duties and

+2 A eR UM RC

Weer ee. NEE) TR oO ae

Appendix D-12

responsibilities given the same person or agency by the

division.

(5) Any local governmental authority enforcing air

pollution control standards which shall issue any enforce-

ment order or grant any variance shall, at the time of

such issuance or granting, transmit to the division a copy

of such order or variance. Within one hundred twenty days

after the effective date of this act, any local governmental

authority having adopted a local air pollution law prior

to such date, shall transmit to the division a report setting

forth sufficient information concerning any® and all en-

forcement orders or variances, or both, issued or granted

prior to the effective date of this act.

*(6) In order to assure coordination of efforts to

control and abate air pollution, at least semiannually the

division and each air pollution control authority created

by a local air pollution law shall confer and review each

other’s records concerning the area subject to such local

law and coordinate their respective plans and programs

for such area.

66-29-7

_ Section 7.—AIR POLLUTION VARIANCE BOARD.

—(1)(a) There is hereby created, as a division of the

state department of public health, an air pollution vari-

ance board which shall consist of nine members appointed

hy the governor, except as provided in paragraph (b) (i)

of this subsection :

(b)(i) The nine members of said air pollution vari-

ance board shall be: .

(ii) One member designated by the state board of

health, to represent said board in matters of air pollution

aa a ne

PARAS OO NO PEE RRS URE A

Appendix D-13

in the interests of the public health of the people of the

state. ‘

(iii) One member shall be a registered professional

engineer with at least five years’ experierige in the actual

practice of his profession and who is not from industry.

(iv) One member, who is not from industry, shall be

either a physician licensed to practice in ‘this state or a.

toxicologist.

(v) Three members from industry in this state.

(vi) Three members, as representatives of the public

at large, not from industry.

(c) Members of such variance board appointed by

the governor shall hold office for terms of four years and

until their suceessors are selected and qualified, except

that of the appointments first made by the governor, four

shall be for terms of two years each, as designated by the

governor at the time of appointment. The member desig-

nated by the state board of health shall serve at the dis-

cretion of ihe state board of health. There shall be no

limitation on the number of terms any appoiuted member

may serve. The members of the air pollution variance

board shalt be appointed within thirty days after the date

of the approval of this act. If any member of the air pol-

lution variance board appointed by the governor shall re-

sign or be removed from the air pollution variance board,

the governor shall promptly appoint a new member sub-

ject to the provisions of this act, to fill the vacancy for

the remainder of the term of the member of the air pol-

lution variance board who has ceased to be a member

thereof. The governor may remove for cause any member

of the air pollution variance board appointed by him.

eel en a ee ae

Appendix D-14

(2)(a) The member of the air pollution variance

hoard designated by the state board of health shall be

the chairman of such variance board for the first year

after the creation thereof, and thereafter the said vari-

ance board shall elect its chairman annually from its mem-

bers for a term of one year or to fill a vacancy.

(b) The air pollution variance board shall meet at

least quarterly, keep a record of its proceedings, and

determine the rules of its own procedures.

. A

(c) Special meetings of the air pollution variance

board may he called by its chairman upon his own initia-

tive and shall be called by him - the receipt by him of

a written request therefor signed by two or more mem-

hers of said variance board or by the division.

(d) Five members of the air pollution variance

hoard shall constitute a quorum, and the concurrence of at

least a majority of all members of the air pollution vari-

«nee board in many matter within its powers and duties

hall be required for any determination made by the said

variance beard.

(e) At least three days prior to each meeting, writ-

‘en notice shail be given to each member of the air pol-

lution variance board of. the time, place and purpose of

-uch meeting.

(3) Each member of the air pollution variance board

shail receive a per diem of twenty dollars for each day

xetually spent in the discharge of official duties, not to

exceed twelve hundrd dollars in any one year; and shall

hall be reimbursed for necessary and actual expenses

which he shall incur in the performance of his duties

under this act.

Appendix D-15

(4)(a) The air pollution variance board shall have

the duty to:

(b) Grant variances as provided in section 11 of

this act.

(c) On or before December 1 of each year, report to

the members of the general assembly on the effectiveness

of the provisions of this act in carrying out the legislative

intent as declared in section 2 of this act, and include in

such report such recommendations at it may have with

respect to any legislative changes that may be needed or

desirable.

(5)(a) The air pollution variance board shall have

the power to:

(b) Hold public hearings, conduct investigations,

compel the attendance of witnesses, receive such perti-

nent and relevant proof and other things as it may deem

to be necessary, proper, or desirable in order that it may

effectively discharge its duties and responsibilities under

this act.

*(c) Designate a hearing officer to conduct hear-

ings on violations of this act and on requests for vari-

ances as provided for in section 66-24-11 of this act,

which officer shall have power to issue notices of hear-

ings, issue subpoenas requiring the attendance of witnesses

and the production of such evidence, administer oaths,

and take such testimony as may be necessary or in con-

formity with article 16 of chapter 3, C.R.S. 1963, and sec-

tion 66-24-12 of this act; and such hearing officer shall

certify and file with the air pollution variance board for

adoption, 1 i0dification, or rejection by said variance

board such hearing officer’s recommended findings, con-

4m"

SES ATT LT RR I Ube eee aS Nh

Appendix D-16

clusions, and proposed orders, and shall cause to be sent

to each party to such hearing a copy of such findings,

conclusions, and proposed orders. Such hearing officer

shall also certify and file with the air pollution variance

‘oard a copy of the full and complete record of all pro-

ceedings and testimony taken before him. If amy sched-

led hearing concerning violations of this act or requests

Yor variances is attended by less than five members of the

air pollution variance board and if the party whose case

is to be heard agrees, such members as do attend shall

constitute a hearing board for such hearing with the same

powers and duties as specified for a hearing officer by

this section.

“(d) Adopt, modify, or reject the findings, conelu-

sions, and proposed orders of any hearing officer desig-

nated under paragraph (c) of this subsection concerning

violations or requests for variances under this act. If such

vetion by the air pollution variance board results in a

i‘inding of a violation or the denial of a requested vari-

‘nee in whole or in part, the party whose case has been

heard may, within ten days after written notification of

such action, file a written request for a hearing before the

air pollution variance board, and such hearing shall there-

i:pon be held bythe air pollution variance board in ac-

cordance with section 66-29-12 of this act.

66-29-8 \

}

Section 8.— POWERS AND DUTIES OF THE

NIVISION. — (1)(a) In addition to duties specified

clsewhere in this act, the division shall have the duty to:

(b) Determine, by means of field studies and air

inonitoring and sampling, if the ambient air standards

are being violated in any area of the state.

SRR ER NR iE Sa OY

Appendix D-17

(ec) Designate by legal description the area or areas

of the state in which the emission standards set forth in

section 5 of this act shall be in effect. Each area so desig-

nated shall consist of an area in which air pollution re-

sults in the ambient air standards set forth in section 4

of this act not being met and also areas adjacent thereto

from which air contamination does or is likely to con-

tribute to such air pollution. The determinations as to

such adjacent areas shall be based upon meteorological

and topographical considerations.

(d) On or before December 1 of each year report to

the members of the general assembly on the effectivenss

of the provisions of this act in carrying out the legislative

intent as declared in section 2 of this act, and include in

such report such recommendations at it may have with

respect to any legislative changes that may be needed or

desirable, including changes in standards.

*(e) Plan an air pollution control program for each

area of the state and confer, review, and coordinate with

each local air pollution control authority as required by

section 6 (6).

(2)(a) In addition to authority specified elsewhere

in this act, the division shall have the power to:

(b) Conduct or cause to be conducted studies and re-

search with respect to air pollution and the control, abate-

ment, or prevention thereof.

(c) Designate one or more persons or agencies in

any area of the state as an air pollution control authority

and as agent of the division to exercise and perform such

powers and duties of the division as may be specified in

such designation.

aoe

LAA GE NI ERLE SL ABD BIR RT are 1 Ae RNR Ne

Appendix D-18

(d) Enter and inspédt any property, premise, or

place for the purpose of investigating either an actual or

a suspected source of air pollution or air contamination or

ascertaining compliance or noncompliance with any emis-

-ion standard or any order under this act. Any informa- .

tion relating to secret process, or methods of manufac-

iure, or production obtained in the course of the inspection

or investigation shall be kept confidential. If samples of

air or air contaminants are taken for analysis, a dupli-

cate of the analytical report shall be furnished promptly

to the person who is suspected of causing such air pollu-

tion or air contamination.

(e) Provide advisory technical- consultation services

to local communities.

(f) Inform the appropriate governmental agency of

the results of atmospheric tests conducted in its jurisdic-

tion and notify the city, town, county, or city and county

affected whenever tests establish that the ambient air or a

source or sources of emission of smoke or air contaminant

ail to meet the standards established by this act. From

time to time after the local agency has been so notified,

the division shall report and make available to the publie

such results, notices to local agencies, and any progress

made by the local agency following such notices.

(g) Furnish such personnel to the air pollution vari-

ance board as the air pollution variance board may rea-

sonably require to carry out its duties and _responsi-

hilities under this act.

(h) Serve as the state agency for the receipt of

moneys from the federal government or other public or

private agencies with respect to air pollution control

activities.

ah I EI ti? iciton om BI NORE Li

ee WD TPES ee ee een tere toe

Appendix D-19

(i) Certify, qualify, or otherwise designate to any

other agency or department of the government of this

state or of any other state or of the federal government

that any facility, land, building, machinery or equipment,

or any part thereof, has been constructed, erected, in-

stalled, or acquired in cenformity with the requirements

of this state or of this act for control of air pollution or

in conformity with the requirements for control of air

pollution of any other state or the federal government.

(3) In the performance of its duties and in the exer-

cise of its powers as set forth in this act the division shall

be subject to the supervision of the state board of health.

66-29-9

Section 9.— TEMPORARY ORDERS PROHIBIT-

ING AIR POLLUTION OF IMMEDIATE DANGER TO

PUBLIC HEALTH. — Whenever the division shall deter-

mine, after investigation, that any person is discharging

or causing to be discharged into the atmosphere directly

or indirectly any air contaminant which constitutes a

clear, present, and immediate danger to the health of the

public, the division shall issue its writen order to said

person that he must discontinue immediately the dis-

charge of such contaminant into the atmosphere and

whereupon such person shall immediately discontinue such

discharge. If such person, notwithstanding such order,

continues the discharge of such contaminants into the

atmosphere, the division is authorized to apply to any

district court of this state for the district in which the

said discharge is occurring for a temporary restraining

order, temporary injunction, or permanent injunction as

provided for in the Colorado rules of civil procedure.

Such action in such district court shall be given prece-

dence over all other matters pending in such district court.

ee SEI 2 NREL DS TR Cath OS

Appendix D-20

The institution, of such injunction proceedings by the

division shall confer upon said district court exclusive

jurisdiction to determine finally the subject matter of the

proceeding.

66-29-10

Section 10.— ENFORCEMENT. — (1) The division

~lfall enforce compliance with the provisions of section 5

of this act.

*(2) In case any written and verified compliant

shall be filed with the division alleging that, or in case

the division itself shall have cause to believe that, any

person is. violating any emission standard under this act,

ithe division shall cause a prompt investigation thereof to

be made, and if the person who makes such investigation

on behalf of the division shall find after such investiga-

tion that a violation of any such standard exists, he shall

promptly notify the director of the division then, by con-

ference, conciliation, and persuasion, the division shall

«ndeavor to eliminate the source or cause of the air pol-

lution or air contamination which resulted in such

violation. .

(3) In case of failure by conference, conciliation, or

persuasion, to correct or remedy such violation, the divi-

:ion shall cause to be issued and served upon the person

ollegedly violating any such standard a written order

which shall specify the provision of the emission stand-

ards of which such person is said to be in violation and

i statement of the manner in which such person is said to

violate it and such order shall require the person so com-

plained against to cease and desist from such violation

within such reasonable time as the division may determine.

(4) Within ten days after receipt of such order the

ADL IOAESE RRO SRI MY Meda OE e+

Appendix D-21

recipient thereof may file with the air pollution variance

board a written request for a hearing as to whether or

not such violation exists or for a variance, or both. Upon

the filing of such a request the order complained of shall

We stayed pending the air pollution variance board’s final

determination thereon. In the event the determination

pertains solely to the question of whether or not a viola-

tion exists,.the order shall be stayed an additional thirty

days within which the recipient may file a written request

for a variance.

66-29-11

Section 11.— VARIANCES. — (1) The air pollution

variance board may grant a variance, suspending or modi-

fying the enforcement of any emission standard, or any

rule, regulation, or enforcement order issued pursuant

to this act against any person, whenever the said variance

board shall determine that such variance would be con-

sistent with and aid in implementing the legislative policy

as set forth in section 2 of this act.

(2) The air pollution variance board shall grant a

variance suspending or modifying the enforcement of any

emission standard, or any rule, regulation, or enforcement

order issued pursuant to this act against any person,

whenever the said variance board shall determine that

strict compliance with any provision of, or order issued

pursuant to, this act would result in an arbitrary and

unreasonable taking of property or im the practical closing

of any lawful business or activity and such would be

without sufficient corresponding public benefit.

*(3) The variance shall be granted, terminated, or

modified by the air pollution variance board only after a

* , Apendix D-22

hearing before it or a hearing officer held pursuant to the

provisions of this act. A variance may be granted with

respect to any existing or proposed facility, process, or

activity, regardless of whether the same is located within

or outside of any designated area of the state. Hearings

may be requested either by the air pollution variance

board, the division, or by any person applying for or hav-

ing received such a variance.

(4) Any variance granted pursuant to the provisions

of this act shall be granted for such period of time and

under such conditions as shall be specified by the air pol-

Jution variance board. The failure to meet any tondi-

tion of the variance without prior written permission of

the said variance board shall render such variance null

and void. The-air pollution variance hoard shall review,

at least annually, any variance that has been granted to

determine whether the terms and conditions of\said vari-

ance have heen complied with, and whether the continu-

ance of the variance is justified.

66-29-12

*Section 12.— HEARINGS —GENERAL PROVI-

SIONS. — (1) Not less than fifteen days after a hearing

has been requested pursuant to section 11 (3) or section

7 (5) (d) of this act, the air pollution variance board

shall grant such request and set a time and place therefor.

Kvery such hearing shall be conducted pursuant to the

provisions of this act and the provisions of article 16 of

chapter 3, C.R.S. 1963.

(2) The division may appear asa party in any hear-

ing before the air pollution variance board and _ shall

have the same rights to judicial review as any other

party.

Appendix D-23

*(3) All testimony taken at any such hearing before

the air pollution variance board or its hearing officer

designated and acting under section 7 (5) (c) shall be

under oath or affirmation. A full and complete record of

all proceedings and testimony presented shall be taken

and filed. The stenographer shall furnish, upon payment

and receipt of any fees allowed therefor, a certified tran-

script of the whole or any part of his record to any

party in such hearing requesting the same.

(4) Any information relating to secret processes,

methods of manufacture, or produetion, which may be re-

quired, ascertained, or discovered shall not be publicly

- disclosed in public hearings or otherwise, and shall be kept

confidential by any member, officer, or employee of the

air pollution variance board or the division.

(5) At any hearings, opportunity to be heard with

respect to the subject thereof shall be given to the public

to the extent deemed reasonable and proper by the air

pollution variance board.

(6) After due consideration of the written and oral

statements, the testimony, and the arguments presented

at any such hearing, the air pollution variance board shall

enter its findings and final order, or make such final

determination of the matter as it shall deem appropriate.

(7) In all proceedings before the air pollution vari-

ance board with respect to any alleged violation of any

emission standard or order, the burden of proof shall be

upon the division.

66-29-13

Section 13.—JUDICIAL REVIEW.—(1) Any

A

Appendix D-24

final order or determination by the air pollution variance

voard (including any final action taken with respect to an

application for a variance as provided in this act) shall be

subject to judicial review in accordance with the pro-

visions of this act and the provisions of article 16 of chap-

ter 3, C.R.S. 1963.

(2) Any party may move the court to remand the

cease to the air pollution variance board, in the interests

of justice, for the purpose of adducing additional speci-

fied and material evidence, and findings thereon; pro-

vided, that such party shall show reasonable grounds for

the failure to adduce such evidence previously before

the said variance board.

(3) Any proceeding for judicial review of any final

order or determination of the air pollution variance board

shall be filed in the district court for the district in which

is located the air contamination source affected and shall

be filed within twenty days after the date of said final

order or determination.

(6-29-14

Sections 14.— INJUNCTIONS. —In the event any

person fails to comply with a cease and desist order that

is not subject to a stay pending administrative review,

the division may request the district attorney for the dis-

trict in which the alleged violation exists or the attorney

general to bring, and if so reqeusted it shall be his duty

to bring, a suit for an injunction to prevent any further

or continued violation of such order. In any such suit any

finding of the air polution variance board shall be prima

facie evidence of the fact or faets found therein. An in-

junction proceeding may be consolidated with judicial re-

view of any final order or determination of the air pollu-

tion variance board.

Appendix D-25

66-29-15

Section 15.— PENALTIES. — (1) Subject to such

variances as may be issued pursuant to this act, any per-

son who in any designated area of the state shall violate

any of the emission standards specified in this act and

effective in such area, shall be guilty of a misdemeanor

and, upon conviction thereof, shall be punished by a fine

of not more than one hundred dollars. Each day during

which such a violation occurs shall constitute a separate

offense.

(2) Subject to such variances as may be issued pur-

suant to a local air pollution law, any person who shall

violate any emission standard specified in any local air

pollution law, within the jurisdiction of¢the local govern-

mental unit, enacting the same, shall be guilty of a mis-

demeanor and, upon conviction therof, shall be punished

by a fine of not more than one hundred dollars. Each day

during which such a violation occurs shall constitute a

separate offense.

(3) No person shall be prosecuted pursuant to both

subsections (1) and (2). of this section for the same

activity.

Lie

2

ee

(4) For all purposes of either subsection (1) or (2)

of this section, each facility, process, and activity that is a

source of air contamination shall be deemed to be in full

compliance with the emission standards specified either in

this act or in any local air pollution law unless and until a

cease and desist order, issued with respect to such facility,

process, or activity pursuant to this act or such local air

pollution law, has become final by exhaustion of all rights,

to administrative and judicial review, including any vari-

ance proceedings. Thereafter, the provisions of this sub-

SEE ae ek ak RIS GS: yh LQ eR ENC Rr Rate Se he ee ee fee oe oc a ne eo RUT eey

be

‘

SE SALLE AT PE NUE TL ENTE TY WTR PNP AMEN ES TR Wet Sa RTE Rt AP ee OT Wt ENE,

Appendix D-26

section shall not be applicable to such facility, process, or

activity.

*(5) “Any person who violates section 5 (4) of this

act by burning or permitting any burning without first

having obtained a permit as required, shall be guilty of a

misdemeanor and, upon conviction thereof, shall be pun-

ished by a fine of not more than one hundred dollars.

Hach day during which such a violation occurs shall con-

stitute a separate offense.

66-29-16

Section 16.— APPLICATION OF ACT.— (1) The

basis for proceedings or other actions that shall result

trom violations of any standard inure solely to and shall

be for the benefit of the people of the state generally and

it is not intended to create in any way new or enlarged

private rights or to enlarge existing private rights, or to

diminish private rights.

(2) A determination that air pollution or air con-

tamination exists or that any standard has been dis-

regarded’ or violated, whether or not a proceeding or

action may be brought by the state, shall not create by

reason thereof any presumption of law or finding of fact

which shall inure to or be for the benefit of any person

other than the state.

(3) The provisions of this act shall not apply to

air pollution insofar as such pollution exists within the

confines of particular commercial or industrial plant,

works, or shop which is the source of such pollution and

also shall not apply or affect the relations between em-

ployers and employees with respect to or arising out of

any condition of air pollution.

Appendix D-27

(4) It is the purpose of this act to provide addi-

tional and cumulative remedies to prevent/ ‘and abate air

pollution and air contamination. Nothing in this act con-

tained shall abridge or alter rights of action or remedies

now or hereafter existing, nor shall any provision of this

act or anything done by virtue of this act be construed as

estopping individuals, cities, towns, counties, cities and

counties, or the state or duly constituted political sub-

divisions thereof from the exercise of their respective

rights to suppress nuisances.

Section 17. 66-2-6(2) and (12), Colorado Revised

Statutes 1963 as amended by senate bill no. 2 enacted by

the forty-fifth general assembly and approved by the gov-

ernor, is hereby amended to read:

66-2-6.— POWERS AND DUTIES OF HEALTH

DEPARTMENTS. — (2) To administer and enforce the

laws pertaining to public health and vital statistics, and

water pollution control, and the orders, rules, regulations,

and standards of the state board of health and the state

‘water pollution control commission, and to enforce the

orders of the division of administration of the state de-

partment of public health with respect to air pollution

control.

(12) To cooperate with the state department of

public health and the state board of health in all matters

pertaining to the public health, with the state water pol-

lution control commission in all matters pertaining to

water pollution control, and with the air pollution vari-

ance board and the division of administration of the state

department of public health in all matters pertaining to

air pollution.

Section 18.—SEVERABILITY CLAUSE. —If any

Appendix D-28

provision of this act or the application thereof to any per-

son or circumstances, is held invalid, such invalidity shall

not affect other provisions or applications of the act

which can be given effect without the invalid provision

or application, and to this end the provisions of this act

are declared severable.

Section 19.— REPEAL. — Article 24 of chapter 66,

Colorado Revised Statutes 1963, and chapter 58, Session

Laws of Colorado 1964, are hereby repealed.

Section 20. — APPROPRIATION. — There is hereby

2nppropriated, out of any moneys in the state treasury not

otherwise appropriated, to the state department of public

health, the sum of fifty thousand dollars ($50,000) or se

much thereof as may be necessary, for the administra-

tion and enforcement of this act. Said appropriation shall

be in addition to any other appropriation made to the

clepartment for such purpose, and shall become available

on the effective date of this act and remain available until

June 30, 1967.

Section 21.— SAFETY CLAUSE. — The general as-

sembly hereby finds, determines, and declares that this act

is necessary for the immediate preservation of the public

peace, health, and safety.

—_ aN

Appendix E-1

APPENDIX E

BEFORE AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO

IN THE MATTER OF THE :

REQUEST OF WESTERN

ALFALFA CORPORATION FINDINGS THE

FOR A VARIANCE FROM FACT, CONCLU-

THE EMISSION STANDARDS SIONS OF LAW,

OF THE AIR POLLUTION AND DECISION.

CONTROL ACT OF 1966,

AS AMENDED. }

THE MATTER of the request of the Western Alfalfa

Corporation (hereinafter referred to as the Petitioner),

for a variance from the emission standards of the Air

Poliution Control Act of 1966, as amended, at its alfalfa

dehydrating plants located at or near the towns of Eaton,

Windsor, and Berthoud, Colorado, came on for hearing

before the Air Pollution Variance Board of the State of

Colorado, in Room 412, Colorado Department of Health

Building, 4210 East 11th Avenue, Denver, Colorado, at

2:30 o’clock p.m., on September 11, 1969, and at 1:30

o’clock p.m., on October 16, 1969. At the hearing on Sep-

tember 11, 1969, David Foster, Esquire, was present and

represented the Colorado Health Department and the

Board, and Mr. George D. Blackwood, Jr., Attorney at

Law, Union National Bank Building, 900 Walnut Street,

Kansas City, Missouri 64106, and Mr. Donald D. Cawelti,

Attorney at Law, Public Service Company Building, 550

15th Street, Denver, Colorado 80202, were present and rep-

resented the Petitioner. At the hearing on October 16,

1969 Mr. James Kreutz, Assistant Attorney General of

Appendix E-2

the State of Colorado, was present and represented the

Board; David Foster, Esquire, was present and repre-

sented the Colorado Health Department; and Mr. Donald

D. Cawelti, Attorney at Law, Public Service Company

Building, 550 15th Street, Denver, Colorado 80202, was

present and represented the Petitioner. From the evi-

dence and matters submitted at the hearings, the Board

finds as follows:

FINDINGS OF FACT

1. That the Petitioner’s operations are in violation

of the emission standards of the Air Pollution Control

Act of 1966, as set out in Section 66-29-5, C.R.S. 1963

(1967 Perm. Cum. Supp.).

2. That Ringelmann and Opacity readings for a

period in excess of three minutes were taken by personnel

of the Colorado Department of Health on June 4, 1969,

and all of such readings were in excess of a Ringelmann

2 and an Opacity of 40%.

3. That representatives of the Division have been in

conference and conciliation with the Petitioner in regard

to its air pollution violations since September, 1967.

4. That Petitioner was issued a Cease and Desist

Order on June 16, 1969.

5. That Petitioner requested a hearing before this

Board to determine if its operations were in violation of

the emission standards set out above and if that finding

was in the affirmative, for a variance from said standards.

6. That Petitioner performed a test pursuant to

» ms . — ete ie PE A) er tr Cn Sa Tt oe Caen RET ESTE

Appendix E-3

Section 66-29-5(2)(e), Chapter 168, Colorado Session

Laws 1969, but the Board finds that Petitioner did not

comply with the statute in performing said test in that

(a) the method of testing was not acceptable to the Divi-

sion, and (b) the Division did not determine that it was a

reasonable correlation between the standards set forth in

subsections (2) and (3) when applied to the Petitioner’s

emissions.

7. That Petitioner does not have a permit or vari-

ance from this Board, the Division, or any local authority

to conduct its operations, in violation of the Air Pollution

Control Act of 1966, as amended.

8. That there are commercial businesses and resi-

dences within 10 block of Pétitioner’s Windsor Plant

operations, % mile of Petitioner’s Eaton Plant opera-

tions, and 1%, mile of Petitioner’s Berthoud Plant

operations.

9. That Petitioner’s operations are within an air

pollution area properly designated by the Division, pur-

suant to the Air Pollution Control Act of 1966, as

amended.

CONCLUSIONS OF LAW

1. The Board finds as a matter of law that the

Petitioner did not conduct the testing of its emissions in

compliance with Section 66-29-5(2)(e), Chapter 168, Colo-

rado Session Laws 1969, and that ‘‘reasonable correla-

tion’? means approximate equivalency.

2. The Board finds as a matter of law that Peti-

tioner’s emissions are of an opacity darker in shade than

that permitted by law.

"SORE oe Neate eee Steere ors . "

ere ESS ee Ee 5 ORO ate, Wp eT ce SRSA DRS RR ROT Ly Sag unt ie et

Appendix E-4

3. The Air Pollution Variance Board is granted

authority under the Air Pollution Control Act of 1966, as

amended, as set out in Sections 66-29-10 and 11, C.R.S.

1963 (1967 Perm. Cum. Supp.), to hold hearings and

grant variances.

4. The Board finds that the legislative declaration

gget out in Section 66-29-2, C.R.S. 1963 (1967 Perm. Cum.

“Supp.), would not be complied with if the Petitioner were

ranted a variance.

‘DECISION

WHEREFORE, it is the decision of the Air Pollu-

tion Variance Board of the State of Colorado that the

Petitioner’s operations are in violation of the emission

standards of the Air Pollution Control of 1966, as

amended, and that Petitioner be and hereby is denied a

variance from said emission standards.

This is a final order of the Air Pollution Variance

Board and is subject to judicial review as set out in

Section 66-29-13, C.R.S. 1963 (1967 Perm. Cum. Supp.).

DONE this 31 day of January, 1970. ;

AIR POLLUTION VARIANCE

BOARD OF THE STATE

OF COLORADO

By GEORGE J. DWIRE,

Chairman

PRR ot sepa aarp pete aR ARE NE TU NIRET ERROR ROEM BEANE EE RS BORNE

Appendix F-1

APPENDIX F

IN THE DISTRICT COURT IN AND FOR THE

COUNTY OF WELD AND

THE STATE OF COLORADO

Civil Action No. 19974

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Petitioner,

vs.

AIR POLLUTION VARIANCE BOARD OF

THE STATE OF COLORADO,

Respondent.

AMENDED FINDINGS AND JUDGEMENT

THIS MATTER coming on for hearing on the

Amended Complaint for review pursuant to Chapter 66,

Article 29, Section 13, 1963 C.R.S., amended, for declara-

tory relief against a ruling of the Air Pollution Variance

Board of the State of Colorado; the Petitioner appear-

ing in Court by and through Donald D. Cawelti, Esq., S.

Robert Houtchens, Esq., and George D. Blackwood, Jr.

Esq., its attorneys; the Respondent appearing in Court

by and through David Foster, Esq., and William Tucker,

Esq., its attorneys; and the Court having reviewed the

proceedings before the Air Pollution Variance Board and

having heard the testimony of witnesses and the argu-

ments of counsel, and a motion having been made for per-

mission to file briefs in relation to the issues herein, and

the Court granting such motion did continue the matter

pending filing of written arguments and supporting

briefs; and the Court having considered the testimony

hs

2 ’ Oe ee eee Ned bd ict ee — . é. oS

ERP RAINE Tei we FONT Eig EASTPOINTE MR YON EG INT TIN MG PENN I POLED HY SE LTR TIM NS BR RMT He OPTI PRESACRAL O ttl 2

Appendix F-2

elicited at the hearing, and arguments of counsel and sup-

porting briefs, did on July 28, 171 enter its Findings and

Judgment. Thereafter, Petioner timely filed a Motion for

Amendment of Findings and Judgment, which motion was

rgued to the Court on November 11, 1971. The Court has

determined that its Findings and Order dated July 28, 1971

should be amended and clarified and accordingly hereby

enters the following findings, conclusions and order:

THE COURT FINDS

That the hearing conducted by the Air Pollution Var-

iance Board of September 11, 1969 and October 16, 1969

was concerned only with the question of an alleged viola-

tion by Petitioner of The Air Pollution Control Act of

1969, as amended, and the resulting Cease and Desist Or-

der promulgated by the Division of Administration of the

State Department of Public Health.

THE COURT FURTHER FINDS that one of the

questions at issue at the hearing before this Court con-

cerned whether or not Petitioner was denied due process

of law and equal protection of the law contrary to the 14th

Amendment of the Constitution of the United States and

Section 25, Article 2 of the Constitution of the State of

Colorado by the acts of the Respondent herein by the use

of the Ringelmann Chart as provided in Chapter 66, Sec-

tion 29, Article 5 (2), C.R.S., 1963, as amended in 1967,

and the Court finds against the Petitioneer herein and for

the Respondent and holds that the use of the Ringelmann

Chart for measurement of opacity is not constitutional.

THE COURT FURTHER FINDS, however, that while

the Ringelmann Chart test is a good and sufficient basis

to institute proceedings or a hearing before the Air Pollu-

oe Sia a ae oat

EERE NES TR WEL LSA TERS OEY te ZERIT PRL

Appendix F-3

tion Variance Board, it is evident by the testimony, both

before the Board and this Court, that it is not the only

test relating to matters set forth in The Air Pollution Con-

trol Act concerning violations thereof and that careful

consideration should be undertaken by the Board if there

is presented to them evidence resulting from a more pre-

cise test of the pollutant emissions. It is noted by the

Court that in Respondent’s brief that the Petitioner’s act

of retaining an engineering firm, to wit: Stearns-Roger,

to conduct a particulate study of the emissions from, its

plant in July, 1969 was objected to for the reason it was

done without notification to the Department of Health of

such test, thus resulting in the Department not having

present personnel to determine if the method was accep-

table. If this be objectionable, then it is likewise objection-

able if the Department of Health makes its examination

of opacity and pollutants without the presence of person-

nel of the person or company being eamined for possible

violation of The Air Pollution Control Act.

THE COURT FURTHER FINDS that the State De-

partment of Health limits the certification of experts in

the use of the Ringelmann readings concerning opacity to -

persons employed by the State, thus precluding possible

challenge of the methods employed in obtaining the read-

ings of the Ringelman Chart and challenging any finding

made by the so-called certified experts at the time of exa-

mination.

THE COURT FURTHER FINDS that in the conduct

of the hearing before the Variance Board that it appeared

to be incumbent upon the Respondent to the Cease and De-

sist Order to be burdened by presenting a preponderance

of evidence to show that it was not in violation of The Air

Pollution Control act rather than, as should have been

Appendix F-4

the case, with the State carrying the burden of proof prov-

ing that the Respondent was guilty of such violation, ac-

cordingly.

THE COURT CONCLUDES:

1. That the hearing afforded Petitioner by the Air

Pollution Variance Board lacked those fundamental ele-

ments required by due process of law and the well de-

veloped standards of fairness which are expected in pro-

ceedings involving the serious consequence sought by Re-

spondent. ,

2.. Petitioner was foreclosed from presenting any

evidence on its behalf since the observations of the State

expert were made in secret without Petitioner being ad-

vised of his presence until the Cease and Desist Order was

issued some twelve days later.

3. The refusal of the Division of Administration of

the State Department of Health to certify as smoke read-

ing experts those persons attending its smoke reading

‘raining school who are not public employees precludes

those accused of pollution from presenting expert testi-

mony which will be received and considered by the Var-

iance Board which action is offensive to this Court’s sense

of fairness.

4. The Variance Board erred in considering only evi-

(lence of Ringelmann observations and in not considering

_ more scientific test made or which could have been made,

particularly considering the fact that the emission here in

question is largely mixed with steam, a nonpollutant. In

this situation the Ringelman observations are particularly

es

See caves PRESEN LIA AROS SEL LL TOLLE RTS LIEW! ANODE Nt MIRE REN RR HY RRR A

Appendix F-5

suspect and the Variance Board should require more sub-

stantial evidence.

5. The finding of the violation by the Variance Board

was not supported by substantial evidence but was based

only upon an uncorroborated testimony of approixmately

10 minutes observation by one witness, and Petitioner was

afforded no opportunity whatsoever to present any evi-

dence to the contrary.

THEREFORE, THE COURT ORDERS that the

decision of the Air Pollution Variance Board be set aside,

and any further proceedings before said Board be con-

ducted in accordance with this opinion.

Done in Chambers this 18 day of November, 1971.

BY THE COURT:

DONALD A. CARPENTER

Judge