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Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

Citation: 6 ELR 20752
No. No. C-682, 553 P.2d 811/9 ERC 1236/191 Colo. 455, (Colo., 08/23/1976) Later state court decision aff'd

The Colorado Supreme Court affirms a lower court's decision that due process requires an air pollution inspector to give notice of his inspection to the inspected plant reasonably soon after the completion of the inspection. Visual opacity tests that determine the particulate content of white smoke meet minimal due process standards and have been upheld by courts in other jurisdictions. Petitioner has not met its burden of proving that the tests and the procedures used by inspectors are an unconstitutional denial of due process. Visual opacity test results are admissible evidence. However, the two-week delay in this case between visual inspection of the respondent's plant and notice of the inspection violates due process. No investigative efforts are hampered by notice given immediately after the inspection. Due process requires that the respondent be given an opportunity to compile evidence to rebut the data compiled by the inspector. Although prior or contemporaneous notice is not necessary, actual notice must be delivered to the plant manager soon after the inspection.

Counsel for Petitioner
J. D. MacFarlane, Attorney General
David W. Robbins, First Asst. Attorney General
Gregory J. Hobbs, Jr., Asst. Attorney General
104 State Capitol
Denver CO 80203
(303) 892-2542

Counsel for Respondent
S. Robert Houtchens
Houtchens, Houtchens & Dooley
1007 Ninth Ave.
Greeley CO 80631
(303) 352-4050

Erickson, J. for the court.