Arkansas Department of Pollution Control & Ecology v. B.J. McAdams, Inc.

Otis H. Turner, Justice.

In this original suit instituted in circuit court by the appellant, the Arkansas Department of Pollution Control and Ecology, the only question on appeal is whether the trial court properly dismissed the .action on the ground that it had no jurisdiction to consider the matter prior to an administrative hearing by the department.

There is no factual dispute regarding the incidents leading up to this appeal. The appellant attempted without success to get the appellee, B.J. McAdams, Inc., to correct an ongoing pollution problem. The violation ceased, and attempts were made to set an agreed penalty for the violations. Those frustrated attempts resulted in the appellant bringing this action in circuit court pursuant to Ark. Code Ann. § 8-4-207 (Supp. 1989), alleging that the appellee “has been extremely uncooperative, hostile and recalcitrant in dealing with the Arkansas Department of Pollution Control and Ecology. Therefore, plaintiff prays that a civil penalty be assessed against the defendant in the amount of $10,000.”

At the time of the filing of the department’s complaint, the violation had ceased, the appellant was not seeking a restraining order or any other remedial measure, and the $10,000 civil penalty requested was in addition to all costs and expenses.

Arkansas Code Annotated § 8-4-103 provides:

(b) The Department of Pollution Control and Ecology is authorized to institute a civil action in any court of competent jurisdiction to restrain any violation of, and to compel compliance with, provisions of this chapter and any rules, regulations, orders, or permits issued pursuant thereto to require the taking of such remedial measures as may be necessary or appropriate to implement or effectuate the provisions and purposes of this chapter or to recover any expenses reasonably incurred by the department in removing, correcting, or terminating any adverse effects resulting therefrom. These purposes may include the cost of investigation, inspection, or survey establishing such violation or unlawful act. . . .

(c) Any person who violates any provision of this chapter or the regulations issued pursuant to this chapter, or who violates any condition of a permit issued under this chapter, may:

(1) In accordance with the regulations issued by the commission, be assessed a civil penalty by the commission. The penalty shall not exceed $5,000 for each violation and each day of a continuing violation may be deemed a separate violation for purposes of penalty assessments. However, no civil penalty may be assessed until the person charged with the violation has been given the opportunity for a hearing on the violation pursuant to sections 8-4-205, 8-4-212, and 8-4-218—8-4-221. Appeal of the commission’s decision may be taken in accordance with the appellate procedure specified in sections 8-4-222—8-4-229;

(2) In any civil action instituted by the department under this chapter, be assessed a civil penalty by the court. The penalty shall not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessments.

The original legislative act contained only the provisions for a “civil action.” A 1983 amendment supplemented the original act by adding subsection (b), the provision against violators to be assessed by the commission.

The problem with this case is that it is neither fish nor fowl. It is an attempt on the part of the appellant to obtain assessment of a civil penalty by the circuit court without filing any civil action under Ark. Code Ann. § 8-4-103(b). There was no current violation at the time the appellant sought the penalty. The plain wording of Ark. Code Ann. § 8-4-103(b) only grants to the trial court jurisdiction to hear civil actions filed by the department “to restrain any violation of, and to compel compliance with, provisions of this chapter and any rules, regulations, orders, or permits issued pursuant thereto. . . .”

Here, the violation had ceased, and the commission, pursuant to Ark. Code Ann. § 8-4-103(c)(1) was empowered, without filing any civil action but pursuant to its regulations, to assess a penalty. This is a provision which is not authorized by the statute.

Admittedly, a clean environment is of major importance and promotes the public welfare. Yet the regulations and the procedures to be followed in the enforcement of those regulations are matters to be left to the legislative process. The legislature has spoken by the enactment of Ark. Code Ann. §8-4-103 (b) and (c). The provisions of § 8-4-103(c)(l) should have been followed, as held by the trial court, and the trial court’s dismissal is affirmed.

Affirmed.

Hays and Glaze, JJ., dissent.