ABC Holdings Inc. v. Kittitas County ( 2015 )

FILED
APRIL 23, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ABC HOLDINGS, INC., and CHEM-SAFE ) No. 30770-1-111
ENVIRONMENTAL, INC., ) Consolidated with
) No. 31712-9-111 and
Appellants, ) No. 32301-3-111
)
v. )
) PUBLISHED OPINION
KITTITAS COUNTY, )
)
Respondent. )
BROWN, AC.J. - Today, we decide three consolidated appeals. First, Chern-Safe
Environmental, Inc. and its parent company, ABC Holdings, Inc. (collectively CSE)
appeal the superior court's public nuisance order, affirming the Kittitas County hearing
examiner's decision upholding the county's notice of violation and abatement (NOVA)
for handling moderate risk waste (MRW) without proper county permits. Second, CSE
appeals the court's contempt order based on its failure to adhere to the NOVA Third,
CSE appeals the court's denial of its motion to vacate the NOVA CSE contends (1) the
NOVA was factually unsupported, beyond the county's authority, and procedurally
defective, (2) the court erred in finding contempt, and (3) the court erred in denying its
reconsideration request in light of newly discovered evidence. We conclude the
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ABC Holdings, Inc. v. Kittitas County
contempt appeal is moot because CSE has since purged the contempt without
sanctions and we reject CSE's remaining contentions. Accordingly, we affirm.
FACTS
The facts are drawn primarily from the hearing examiner's unchallenged findings
offact. From July 10, 2008 through January 27,2011, CSE collected MRW materials
on its property before transporting the waste to disposal facilities. CSE claimed it was in
the process of obtaining a permit. On January 27, 2011-, a county's health department
inspector, James Rivard, visited CSE's property. He had inspected the site in the past
and had warned CSE it needed a permit. Mr. Rivard found MRW material on the
property, which Mr. Rivard believed was dry cleaning solvent (dichloromllthyl ether),
labeled P016-a hazardous waste number designated by 40 C.F.R. § 261.33. CSE did
not have a permit from the county's health department to collect MRW or operate a
MRW facility on the property, violating Kittitas County Code Ordinance 1999-01 and
chapter 173-350 WAC.
The county issued a NOVA to CSE including a description of the alleged
violation, notice of a $500 fine payable within 30 days from the end of the appeal period,
a description of abatement action necessary, a statement that CSE could request an
administrative hearing, and notice the county may assess costs of abatement against
CSE. The NOVA ordered CSE to "test the concrete floor and ground at the facility site
for contamination. All test methods and sample locations must be pre-approved by [the
County] in consultation with [the Department of Ecology] prior to any testing. Testing
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cannot be performed by [CSE], but must be done by a neutral 3rd party who is
approved by [the County] in consultation with ~OE.'' Clerk's Papers (CP) at 536.
Lastly, the county concluded CSE's actions amounted to a public nuisance.
CSE requested an administrative hearing but did not dispute it had been
operating during Mr. Rivard's investigation without a required permit. CSE, however,
argued it was in the process of applying for the proper permit and asserted the county
had approved its operation during the application period. The county pointed out Mr.
Rivard's declaration submitted to the hearing examiner made reference to a drum
observed at the CSE facility that Mr. Rivard initially believed contained "P016." The
county explained to the hearing examiner Mr. Rivard's understanding of the label was
mistaken and that it actually listed "0016." The county informed the hearing examiner
that 0016 was listed as a dangerous waste per WAC 173-303-090(S)(c) and at 40
C.F.R. § 261.21.
The hearing examiner found the county had allowed CSE to operate their waste
facility during the application process, but were not estopped to revoke that consent to
protect the public health, safety and welfare. The examiner found the county lacked
authority to waive the permitting requirements. And, that CSE "does not dispute that
they operated without the required license/permit." CP at S. The examiner affirmed the
NOVA and denied reconsideration. By this time, CSE had ceased operating at its
property.
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I In March 2012, CSE appealed to the superior court; the superior court affirmed,
filing a memorandum decision.
In April 2012, CSE appealed here and requested the superior court stay NOVA
enforcement until this appeal was decided. CSE mainly wanted to stay the required
testing of the facilities' floor and ground below. In June 2012 the superior court denied
CSE's stay request, finding it did not have jurisdiction because a notice of appeal had
been filed. This court directed the parties to RAP 7.2 and RAP 8.1 regarding post
judgment motions and the right to stay enforcement of trial court decisions.
Based on this court's directive, CSE moved for reconsideration of the June 2012
order denying its stay request, based on CR 59(a){8) (error of law), or alternatively,
under CR 60(b)(3) (newly discovered evidence based on Mr. Rivard's later declaration
regarding the drums' labeling). In October 2012, the superior court denied CSE's stay
request, but did not address its CR 60 motion. In November 2012, CSE unsuccessfully
requested reconsideration of the court's denial of its stay motion.
In April 2013, the county requested a show cause hearing on why CSE should
not be found in contempt for failing to adhere to the NOVA. In May 2013, the court
found CSE in contempt, stating, "The contempt may be purged if appellants both
formulate and execute a satisfactory sampling/testing plan." CP at 885. CSE appealed
the court's contempt order to this court. In December 2013, the court ruled CSE had
purged the contempt and denied the county's request for sanctions.
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In February 2014, eSE requested clarification of the court's November 2012
denial of its request for reconsideration. Filing another memorandum decision, the
superior court clarified its denial of eSE's motion to vacate based on newly discovered
evidence, finding Mr. Rivard's subsequent declaration regarding the drums' labeling was
before the hearing examiner and not newly discovered evidence. eSE separately
appealed that ruling as well. This court consolidated the three matters.
ANALYSIS
A. Permit Requirement
The issue is whether the hearing examiner erred in affirming the county's NOVA
for eSE's operation without a permit. eSE contends it was not required to have a
permit, the NOVA was issued without due process, and the required abatement
amounts to an imper.missible taking.
The superior court reviews the administrative record before the body or officer in
the local jurisdiction authorized to make the final determination. Citizens to Preserve
Pioneer Park v. City of Mercer Island, 106 Wash. App. 461, 470, 24 P.3d 1079 (2001).
We stand in the same position as the superior court and review the record before the
hearing examiner. Thornton Creek Legal Oef. Fund v. City of Seattle, 113 Wash. App. 34,
47,52 P.3d 522 (2002). We review challenged findings of fact under the substantial
evidence standard and conclusions of law de novo. Wenatchee Sportsmen Ass'n v.
Chelan County, 141 Wash. 2d 169, 176,4 P.3d 123 (2000). Since CSE does not
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challenge the findings of fact, we consider them verities here. Anderson v. Pierce
County, 86 Wn. App. 290,307 n.9, 936 P.2d 432 (1997).
Initially, the county argues this appeal is not a matter of right because the
superior court heard the matter like an appeal or review of an order by a court of limited
jurisdiction. But, a court of limited jurisdiction is any court organized under Titles 3, 35,
or 35A RCW. RCW 3.02.010. The hearing examiner is not a court organized under any
of those titles, and is therefore not a court of limited jurisdiction. Thus, the superior
court's orders were final orders appealable as a matter of right under RAP 2.2(a)(1).
CSE no longer argues it was a generator of solid waste, and instead argues it
was not required to obtain a county permit because it was a transferor/transporter of
MRW regulated by state and federal agencies. The county responds this issue was not
before the hearing examiner and, therefore, is not properly before us. "Our cases
require issues to be first raised at the administrative level." Citizens for Mt. Vernon v.
CityofMt. Vernon, 133 Wash. 2d 861, 869, 947 P.2d 1208 (1997). Furthermore, "[i]n order
for an issue to be properly raised before an administrative agency, there must be more
than simply a hint or a slight reference to the issue in the record." King County v. Wash.
State Boundary Review Bd., 122 Wash. 2d 648, 670,860 P.2d 1024 (1993).
The hearing examiner found CSE operated by "collecting moderate risk waste
materials on the Property before transporting ... to disposal facilities" but CSE had not
"obtained a permit to collect ... waste ... from [the] County." CP at 5. The examiner
found, "a violation of the KCC Ordinance 1999-01 and WAC 173-350 occurred due to
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the existence of an unpermitted ... moderate risk waste facility." CP at 5. CSE did not
contest and even conceded the permit requirement at the administrative hearing.
Indeed, CSE initially defended, by arguing, it was in the process of obtaining a permit
when the county issued the NOVA. The hearing examiner's unchallenged findings of
fact clearly show CSE failed to obtain a permit, a violation of local and state
administrative codes. Thus, the issue of whether a permit was required was not raised
below.
Requiring resolution of an issue at the administrative level is more than '''simply a
technical rule of appellate procedure; instead, it serves an important policy purpose in
protecting the integrity of administrative decision-making.'" Pacific Land Partners, LLC,
v. Dep't of Ecology, 150 Wn. App. 740,754,208 P.3d 586 (2009) (citation omitted).
The issue of whether CSE was required to obtain a permit from the county should have
been raised at the administrative level and is not properly before us. Even so, we note
CSE's argument it was solely a transferor/transporter of MRW waste excluded from the
county's permit requirements lacks merit.
RCW 70.95.160 directs jurisdictional health boards to adopt regulations
governing solid waste handling "including but not limited to the issuance of permits and
the establishment of minimum levels and types of service for any aspect of solid waste
handling." MRW is defined as a solid waste. RCW 70.105.010(13).
Pursuant to chapter 173-350 WAC, the county adopted solid waste ordinance
1999-01 to "govern the handling, storage, collection, transportation, treatment,
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utilization, processing and final disposal of all solid waste within Kittitas County,
including the issuance of permits and enforcement." Board Record (BR) at 27. The
regulations are implemented by a general permit process: "all solid waste handling,
storage, collection, transportation, treatment, utilization, processing, recycling, recovery,
and final disposal facilities subject to these regulations are required to obtain permits."
BR at 48. This section specifies "[n]o solid waste disposal site or facility, solid waste
handling facility, shall be operated, established, substantially altered, expanded or
improved until the county, city or other person operating or owning such site has
obtained a Solid Waste Handling Permit from the Health Department pursuant to the
provisions of this section." BR at 49. "We interpret local ordinances the same as
statutes." Sleasman v. City of Lacey, 159Wn.2d 639, 643,151 P.3d 990 (2007). An
unambiguous ordinance will be given its plain meaning. Id. While we acknowledge the
parties struggle to reconcile seemingly overlapping regulatory schemes as the focal
point of their problem, we need not attempt to voice our view on this problem because
our dispute resolution does not allow us to express advisory opinions. Our record is
clear.
The unchallenged findings show CSE was in the business of "collecting
moderate risk waste materials on the Property before transporting." CP at 5. This
handling, collecting, and storing is covered by ordinance 1999-01 and requires a permit.
CSE claims, however, it .was exempt from the MRW facility permit requirement because
it possessed approval by the Department of Ecology (DOE) and the Environmental
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Protection Agency (EPA). While CSE possessed an EPA/State Identification Number
for tracking waste during transportation, nothing in the solid waste handling regulations
(chapter 173-350 WAC) relieves CSE of local permit requirements for storage facilities.
Given the heavily regulated nature of dangerous waste and solid waste in Washington,
we reject any implicit exemption in the Ordinance 1999-01 permit requirements.
CSE argues alternatively it was in the process of obtaining a permit and had
been assured by Mr. Rivard it could operate during the application period without a
permit, thereby estopping the county from arguing CSE violated Ordinance 1999-01.
But estoppel can solely be invoked against the government on a showing of clear and
convincing evidence of specified elements, including proof that estoppel will not impair
governmental functions. Kramarevcky v. Oep't of Soc. & Health Servs., 122 Wash. 2d 738,
743,863 P.2d 535 (1993). CSE made no such showing below. We reject CSE's
estoppel arguments because the gravamen of Washington's solid waste regulations is
the delegation of authority to local jurisdictions to impose permit requirements;
accepting CSE's argument would conflict with this important governmental function.
CSE next argues the county improperly issued the NOVA without showing a
public nuisance. Generally, abatement is a remedy against a public nuisance. RCW
7.48.200. Kittitas County Code (KCC) 18.01.010(1) declares a public nuisance exists
for violations of Kittitas county ordinances and codes related to, among other things,
environmental health and safety. Specifically, pursuant to KCC 18.01.010(1 )(k) any
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violation of the Kittitas County health ordinances and codes, "including but not limited to,
Solid Waste Ordinance(s)" constitutes a public nuisance.
As analyzed above, CSE did not comply with local permitting ordinances. This
noncompliance is considered a public nuisance under the plain terms of KCC
18.01.010(1 )(k) and is sufficient to justify the NOVA.1 Accordingly, we conclude the
hearing examiner did not err in concluding likewise.
CSE next argues it was denied due process, claiming "specific Constitutional
protections against retroactive penalties" and "due process requirements have not been
met." Appellant's Br. at 34. The fundamental requirements of procedural due process
are notice and opportunity to be heard. Wichert v. Cardwell, 117 Wash. 2d 148, 151, 812
P.2d 858 (1991). Based on our record, CSE was provided notice and an opportunity to
be heard regarding the NOVA as evidenced by the appeal to the hearing examiner.
Moreover, the NOVA did not deprive CSE of any constitutionally protected property
interest. The NOVA did not cause a deprivation of any CSE permitted activity. A
violation notice, even if final, "is not the type of encumbrance that constitutes a
significant property interest giving rise to procedural due process." Cranwell v. Mesec,
77 Wash. App. 90, 111,890 P.2d 491 (1995). Accordingly, the NOVA alone does not
implicate a property interest giving rise to due process requirements; rather, it required
1 CSE challenges the hearing examiner's conclusion that the presence of
dangerous and/or hazardous wastes and labeling and storage violations constituted a
public nuisance. Because the lack of the permit satisfies the public nuisance finding, we
need not further discuss this NOVA challenge.
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CSE to take action in accordance with its terms. In sum, we conclude CSE was not
unconstitutionally deprived of any protected property interest.
CSE lastly argues the county's NOVA constitutes a "taking." Appellant's Br. at
37. CSE cites to Koontz v. Sf. Johns River Water Mgmf. Dist., _ U.S. _,133 S. Ct.
2586, 186 L. Ed. 2d 697 (2013) in footnote 53 of its brief to support its argument. But,
the Koontz holding applies solely in the context of the land use permit process where a
government approval was conditioned on coercively compelling a landowner to give up
property. Id. at 2603. Our case is distinguished from Koontz because it concerns
regulatory permit enforcement and does not compel a landowner to give up property.
Given all, we hold CSE fails to show the hearing examiner erred in concluding
the county properly issued the NOVA because it lacked the required county permit.
B. Post Judgment Motions
The issue is whether the trial court erred by abusing its discretion in denying
CSE's postjudgment CR 59 and CR 60 motions. CSE contends the court should have
stayed enforcement of the NOVA's testing requirements because it was invalid and
should have set aside the judgment based on Mr. Rivard's alleged recantation.
We review rulings under CR 59 and 60 for abuse of discretion. Sommer v. Dep't
of Soc. &HealthServs., 104Wn.App.160, 170-71, 15 P.3d 664 (2001); Shawv. City of
Des Moines, 109 Wash. App. 896, 900, 37 P.3d 1255 (2002). Discretion is abused if it is
exercised without tenable grounds or reasons. State ex reI. Carroll v. Junker, 79 Wn.2d
12,26,482 P.2d 775 (1971).
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Initially, the county argues CSE's clarification motion was untimely. In June 2012
the superior court denied CSE's stay request. Since the matter was on appeal before
this court, a commissioner of this court directed the trial court to RAP 7.2 and RAP 8.1.
Based on this court's directive, CSE filed a motion for reconsideration. In October 2012,
the superior court reconsidered and denied CSE's stay request, but did not address its
CR 60 motion based on newly discovered evidence. In November 2012, CSE
unsuccessfully requested reconsideration of the court's denial of its stay motion. In
February 2014, CSE requested clarification of the court's November 2012 denial of its
request for reconsideration, arguing the court overlooked its CR 60 motion in 2012.
We reject this contention because under CR 60(a), "mistakes in judgments,
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orders or other parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time." The court overlooked an issue raised by
CSE in 2012. Two years later, and while litigation continued, CSE brought the omission
to the court's attention. This is reasonable under CR 60(a).
Turning to the merits, the trial court made clear it did not rely to its detriment on a
false statement of Mr. Rivard's to justify relief. The superior court clarified its denial of
CSE's motion to vacate based on newly discovered evidence, finding Mr. Rivard's later
declaration regarding the drums' labeling was before the hearing examiner and not
newly discovered. These findings are tenable grounds to justify the court's denial of
CSE's postjudgment relief request.
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CSE's judicial estoppel theory lacks merit. For judicial estoppel to apply, an
inconsistent position first asserted must have persuaded the court to accept its position.
Falkner v. Foshaug, 108 Wash. App. 113, 125,29 P.3d 771 (2001). The court mentioned
the mistake issue in Mr. Rivard's first declaration and found the error was revealed at
the administrative hearing level; thus, it concluded the "substantive relevance" of the
issue "would not change this court's decision to affirm the hearing examiner's
determination that labeling and storage violations occurred and that Chem-Safe
maintained a public nuisance." CP at 1022. The court's analysis shows no inconsistent
position originally asserted. Without such, CSE's judicial estoppel claim fails.
C. Contempt
CSE contends the trial court erred in finding it in contempt of the trial court's May
2012 final order because NOVA improperly compelled it to have a third party test its
facility, did not provide away to purge the contempt, and denied due process by
precluding it from a hearing to show the NOVA requirements were improper.
Contempt of court includes the intentional disobedience of any lawful judgment.
RCW 7.21.010(1)(b). If the court finds "that the person has failed or refused to perform
an act that is yet within the person's power to perform, the court may find the person in
contempt of court." RCW 7.21.030(2). We review contempt findings for an abuse of
discretion. Moreman v. Butcher, 126 Wash. 2d 36, 40-41,891 P.2d 725 (1995).
"A case is moot if a court can no longer provide effective relief." Orwick v. City of
Seattle, 103 Wn.2d 249,253,692 P.2d 793 (1984). Generally moot issues are
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dismissed on appeal. City of Seattle v. Johnson, 58 Wash. App. 64, 66-67, 791 P.2d 266
(1990). Here, the county requested a show cause hearing on why CSE should not be
found in contempt for failing to adhere to the NOVA. CSE failed to meet its burden.
Thus, the court found CSE in contempt, and ordered, "The contempt may be purged if
appellants both formulate and execute a satisfactory sampling/testing plan." CP at 885.
CSE satisfied the required testing. The court purged the contempt finding and denied
the county's sanctions request. Therefore, we can provide no further effective relief.
Accordingly, we conclude the contempt issues are moot.
Affirmed.
Brown, A.C.J.
I CONCUR:
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No. 30770-1-III; 31712-9-III; 32301-3-III
Fearing, J. (concurring) - I concur with the majority's decision in each of the
three consolidated appeals. I write separately because I do not join in one of the
majority's ruling in the first appeal that challenges the validity of the notice of violation
and abatement (NOVA). The majority holds that Chem-Safe Environmental, Inc. (CSE),
was not exempt from the moderate risk waste (MRW) facility permit required by Kittitas
County despite holding a permit from the Washington State Department of Ecology and
Environmental Protection Agency to handle dangerous waste (DW), a level of waste
more risky than MRW. I find the law ambiguous on whether one holding a permit to
handle DW must also obtain a permit to handle MRW. Therefore, I would avoid the
issue and resolve the first of the three appeals on the sole basis of invited error.
Kittitas County contends that CSE failed to raise the issue of an exemption before
the hearing examiner and thus waived the issue on appeal. As mentioned in passing by
the majority, this court will not review an issue that was not raised before an
administrative body unless the appellant (1) did not know and had no duty to discover
facts giving rise to the issue, (2) did not have an opportunity to raise the issue before the
agency, or (3) the issue arose from a change in controlling law or a change in agency
Nos. 30770-1-III; 31712-9-111; 32301-3-II1
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action and the interests ofjustice require its resolution. RCW 34.05.554(1)(d); Kitsap
Alliance ofProp. Owners v. Cent. Puget Sound Growth Mgmt Hearings Bd, 160 Wn.
App. 250, 271-72, 255 P.3d 696 (2011). None of these exceptions apply.
CSE contends it forwarded its exemption argument before the hearing examiner,
and it cites to Clerk's Papers at 468 for this contention. During the administrative
hearing on that page of the transcript, CSE represented to the hearing examiner that the
Department of Ecology originally told CSE that it needed the county permit, but the
county disagreed. Later, according to the representation, Kittitas County changed its
mind and told CSE that it needed a permit. CSE argued to the hearing examiner that the
county should be estopped from demanding a county permit to handle MRW.
Nevertheless, CSE did not argue that it was exempt because it also handled DW.
In oral argument before this court, CSE also contended that its various briefs
submitted to the hearing examiner forwarded the exemption argument. CSE has failed to
cite to any portion of the briefs that presented this argument, however. In its opening
brief, filed March 23, 2011, CSE maintained that the lack of a permit was not a public
nuisance; any public nuisance did not justify the issuance of a NOVA; it timely submitted
a completed application for a county permit; the county agent, James Rivard, consented
to CSE operating without a permit; and CSE will eventually procure a permit. Board
Record (BR) at Index #56. In its supplementai brief, filed April 14,2011, CSE argued
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that Kittitas County erred in identifying the substance in a drum. BR at Index #60. CSE
did not assert an exemption in either brief.
CSE's response brief, filed April 21, 2011, repeated earlier arguments and added
that some of its problems arise from handing DW, not MRW. CSE did not assert that,
since it had a permit to handle DW, it did not need a permit to handle MRW. More
importantly, CSE wrote, "The issue is not whether County Health can require an MR W
permit but whether it can retroactively revoke the right it has granted to [p ]etitioner to
operate without one and to fine petitioner based thereon." BR at Index #63, page 9 of 19.
In its brief in support of a motion for reconsideration, filed May 26, 2011, CSE
argued estoppel; it was a small generator; and invasive testing was not needed at the site.
CSE further wrote, "Appellant does not urge that it is not required to obtain an MWF
permit. It applied for such a permit and there is a modified MWF permit application
pending." BR at Index #71, page 4 of20. Thus, in two briefs, CSE told the hearing
examiner it needed a county MRW permit. CSE asserted no exemption from the permit
requirement.
CSE contends it may raise the exemption for the first time on appeal under RAP
2.5(a)(3). This rule's subsection permits the raising of a new issue on appeal if the issue
involves a manifest constitutional error. I question whether any error is constitutional in
nature or manifest in character. I need not address this question, however. CSE
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affirmatively told the hearing examiner that it needed a permit and was engaged in the
process of procuring the permit.
If the hearing examiner committed any error, CSE encouraged the error. Under
the doctrine of invited error, a party may not materially contribute to an erroneous
application of law during a hearing and then complain of it on appeal. In re Dependency
ofK.R., 128 Wash. 2d 129, 147,904 P.2d 1132 (1995). The doctrine of invited error
prohibits a party from setting up an error at trial and then complaining of it on appeal.
State v. Wakefield, 130 Wn.2d 464,475,925 P.2d 183 (1996); State v. Pam, 101 Wn.2d
507,511,680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d
315,893 P.2d 629 (1995).
I CONCUR:
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