Alaska Community Action on Toxics v. Hartig, 070312 AKDEC, 3PA-11-01604CI

Docket Nº:3PA-11-01604CI
Opinion Judge:KARI KRISTIANSEN SUPERIOR COURT JUDGE
Party Name:ALASKA COMMUNITY ACTION ON TOXICS, ALASKA SURVIVAL, and COOK INLETKEEPER, Appellants, v. LAWRENCE HARTIG, COMMISSIONER OF THE ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION (in his official capacity) and ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DIVISION OF ENVIRONMENTAL HEALTH; AND ALASKA RAILROAD CORPORATION, Appellees.
Case Date:July 03, 2012
Court:Superior Court of Alaska
 
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ALASKA COMMUNITY ACTION ON TOXICS, ALASKA SURVIVAL, and COOK INLETKEEPER, Appellants,

v.

LAWRENCE HARTIG, COMMISSIONER OF THE ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION (in his official capacity) and ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DIVISION OF ENVIRONMENTAL HEALTH; AND ALASKA RAILROAD CORPORATION, Appellees.

No. 3PA-11-01604CI

Superior Court of Alaska, Third Judicial District, Palmer

July 3, 2012

DECISION ON APPEAL

KARI KRISTIANSEN SUPERIOR COURT JUDGE

This case is an administrative appeal from a final decision by the Commissioner of the Alaska Department of Environmental Conservation (DEC) upholding Alaska Railroad Corporation Pesticide Permit #10-SOL-01 (Permit). Based on the reasons discussed below, the decision upholding the Permit is AFFIRMED.

I. PROCEDURAL HISTORY AND FACTUAL SUMMARY

In 2009 the Alaska Railroad Corporation (ARRC) sought to use pesticide to control vegetative growth along its railroad. On May 22, 2009, ARRC submitted a pesticide permit application to the DEC.1 ARRC proposed to apply herbicide to portions of a 90 mile section of railroad between Seward and Indian.2 The application provided for the use of herbicide to 41 sections of the railbed, confined to the 8-foot width of the railbed, and to 30 acres in the Seward rail yard.3 The proposed total acreage to be affected was 58.8 acres.4 The herbicide proposed for use had been approved by the Environmental Protection Agency for use on railroad right of ways and was approved for use on water.5 ARRC proposed a 100 foot buffer zone from spraying around water bodies along the railroad right of way.6 The application proposed June 2010 as the date for the application of herbicide.7

ARRC published notice regarding the Permit application in daily and weekly newspapers serving the Anchorage, Seward and Turnagain Arm communities.8 A series of three public hearings were held August 10-12, 2009, in Whittier, Seward and Anchorage.9 Alaska Community Action on Toxics (ACAT), Cook Inletkeeper and Alaska Survival provided comments during this process.10 ACAT testified at one of the public hearings.11

The DEC issued a decision document and a document responding to the public comments on April 30, 2010.12 ACAT, Alaska Survival, Cook Inletkeeper and other entities collectively filed a request on June 1, 2010, for an adjudicatory hearing regarding the DEC's decision to issue the Permit.13 ACAT also requested a stay of ARRC s application of herbicides pursuant to the Permit.14

Commissioner Larry Hartig (Commissioner) granted in part ACAT's request for a stay.15The Commissioner granted a stay for a small section of the railroad near Seward where possible migration of the herbicide could occur but otherwise declined to stay the issuance of the permit.16

On July 2, 2010, ACAT filed an administrative appeal challenging the DEC's issuance of the Permit and the Commissioner's granting in part and denying in part the request for a stay. The Superior Court denied ACAT's motion for a temporary restraining order and preliminary injunction.17 ACAT appealed the Superior Court's decision to the Alaska Supreme Court which denied the petition for review on July 23, 2010.18

Deputy Commissioner Dan Easton (Deputy Commissioner), on August 6, 2010, granted in part ACAT's request for hearing.19 The Deputy Commissioner denied Cook Inletkeeper standing to request a hearing, finding that Cook Inletkeeper had "not met the minimal burden of explaining how their interests would be affected by the decision."20 Cook Inletkeeper, along with several other organizations, sought reconsideration of the order denying it standing and in the alternative sought to intervene. The Administrative Law Judge (ALJ) denied reconsideration and also denied Cook Inletkeeper's Motion to Intervene.21 The ALJ determined that Cook Inletkeeper's interests were adequately represented by the other parties.22

The Deputy Commissioner granted a hearing on the record pursuant to 18 AAC 15.220(c) as to: (A) Whether the DEC reasonably exercised its discretion in determining that an application was complete; (B) Whether ARRC was required to list all public and private water systems within 200 feet of the treatment area; and (C) Whether valid statutes or regulations were applied in an unconstitutional manner.23 The Deputy Commissioner also granted an adjudicatory hearing pursuant to 18 AAC 15.220(b)(1) as to: (A) Whether the application of the herbicide in proximity to any wells will result in an unreasonable adverse effect to individuals or the environment; and (B) Whether application of the herbicide in compliance with the permit would pose a risk of adverse effect to individuals or the environment, and whether any such effect would be unreasonable.24

The ALJ upheld the issuance of the Permit in the Decision on Hearing on the Agency Record on February 16, 2011, 25 The ALJ determined that the DEC did not abuse its discretion in determining that ARRC's Permit application was complete.26 The ALJ also determined that there were no constitutional violations.27

Following the ALJ's decision ACAT moved to voluntarily dismiss the adjudicatory hearing without prejudice, which the ALJ granted.28 The ALJ held that ACAT was not precluded from raising those issues in response to any future permit but was precluded from raising these issues again m regard to Permit 10-SOL-01.29

The ALJ issued a final decision on April 22, 2011, upholding the issuance of the Permit on the same grounds as stated in the Decision on Hearing on the Agency Record.30 On April 27, 2011, the Commissioner adopted the final decision as the final administrative determination in this matter.31 ACAT, Alaska Survival and Cook Inletkeeper (collectively referred to as ACAT) filed an appeal in this court.

II. STANDARD OF REVIEW

The standard of review applied in this case is dependent on the nature of the DEC's actions. There are four possible standards of review to be applied in a superior court's review of an administrative decision: (1) substantial evidence test, (2) reasonable basis test, (3) substitution of judgment test, (4) and the reasonable and not arbitrary test.

The "substantial evidence" test is used for questions of fact. The "reasonable basis" test is used for questions of law involving agency expertise. The "substitution of judgment" test is used for questions of law where no expertise is involved. The "reasonable and not arbitrary" test is used for review of administrative regulations.32

The court reviews an agency's interpretation of its own regulation under the reasonable basis standard, deferring to the agency unless the interpretation is "plainly erroneous and inconsistent with the regulation."33 The reasonable basis test requires deference to be given to an administrative determination if it has a reasonable basis in law and fact.34

The "substantial evidence" test is used for questions of fact. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."35 The court need only determine whether such evidence exists, and does not choose between competing inferences.36 The court does not evaluate the strength of the evidence, but merely notes its presence.37

III. ANALYSIS

A. Did the DEC abuse its discretion by determining that ARRC's Permit application was complete?

Under regulations promulgated by the DEC, a permit application for the spraying of pesticide must identify, among other things, "a description of the treatment area where the pesticide will be applied, including ... each potentially affected surface water or marine water body within 200 feet of the treatment area, or each public or private water system within 200 feet of the treatment area" and "the proposed date and time of each pesticide application."38 The DEC may also request additional information as necessary to evaluate the permit application.39 The DEC "will, in its discretion, deny a permit if... the applicant fails to supply information or evidence required" by the regulations.40

AC AT argues that the record does not support DEC's decision not to require information of the proposed spray areas' proximity to water and the time and location of spraying. Essentially, AC AT argues that the Permit application was not complete. The court reviews the DEC's interpretation of its own regulations, whether ARRC's Permit application met the applicable requirements, under the reasonable basis test.

1. List of Potentially Affected Surface Waters

As part of its application, ARRC proposed the use of a pilot car to ensure that spraying would not occur within 100 feet of any water body.41 The pilot car, operated by an ARRC employee, would travel in front of the spray vehicle during the application of herbicide.42 The pilot car would identify any upcoming buffer zone and would radio the spray vehicle of any upcoming buffer zones.43Additionally, the areas to be sprayed would be pre-marked.44 The use of the pilot car was included in the Permit.45

After AARC submitted the application, the DEC requested additional information regarding how the pilot car would identify buffer zones near water bodies and a clear statement as to how a water body would be defined.46 The DEC determined that while the aerial photos may be helpful, it would be more accurate to use the pilot car during the spraying.47 The DEC determined that a static map would not accurately reflect all of the water bodies at the time of spraying.48 The Commissioner agreed, finding that the DEC could reasonably conclude that the use of a pilot car "would provide more protection for surface water than requiring a list of potentially affected water bodies."49

The DEC had a reasonable basis...

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