ABC Holdings, Inc. v. Kittitas Cnty.

• Decision Date: 23 April 2015
• Docket Number: 32301–3–III.,31712–9–III,Nos. 30770–1–III,s. 30770–1–III
• Citation: 187 Wash.App. 275,348 P.3d 1222
• Court: Washington Court of Appeals
• Parties: ABC HOLDINGS, INC., and Chem–Safe Environmental, Inc., Appellants, v. KITTITAS COUNTY, Respondent.

187 Wash.App. 275

348 P.3d 1222

ABC HOLDINGS, INC., and Chem–Safe Environmental, Inc., Appellants

v.KITTITAS COUNTY, Respondent.

Nos. 30770–1–III

31712–9–III

32301–3–III.

Court of Appeals of Washington, Division 3.

April 23, 2015.

Leslie Alan Powers, Attorney at Law, Yakima, WA, for Appellants.

Neil Alan Caulkins, Kittitas County Prosecutor, Ellensburg, WA, Kenneth W. Harper, Menke Jackson Beyer, LLP, Yakima, WA, for Respondent.

Opinion

BROWN, A.C.J.

¶ 1 Today, we decide three consolidated appeals. First, Chem–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 contempt appeal is moot because CSE has since purged the contempt without sanctions and we reject CSE's remaining contentions. Accordingly, we affirm.

FACTS

¶ 2 The facts are drawn primarily from the hearing examiner's unchallenged findings of fact. 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.

¶ 3 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 cannot be performed by [CSE], but must be done by a neutral 3rd party who is approved by [the County] in consultation with DOE.” Clerk's Papers (CP) at 536. Lastly, the county concluded CSE's actions amounted to a public nuisance.

¶ 4 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 “D016,” The county informed the hearing examiner that D016 was listed as a dangerous waste per WAC 173–303–090(8)(c) and at 40 C.F.R. § 261.21.

¶ 5 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 8. The examiner affirmed the NOVA and denied reconsideration. By this time, CSE had ceased operating at its property.

¶ 6 In March 2012, CSE appealed to the superior court; the superior court affirmed, filing a memorandum decision.

¶ 7 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.

¶ 8 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.

¶ 9 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.

¶ 10 In February 2014, CSE 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 CSE'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. CSE separately appealed that ruling as well. This court consolidated the three matters.

ANALYSIS

A. Permit Requirement

¶ 11 The issue is whether the hearing examiner erred in affirming the county's NOVA for CSE's operation without a permit. CSE contends it was not required to have a permit, the NOVA was issued without due process, and the required abatement amounts to an impermissible taking.

¶ 12 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 Defense 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 challenge the findings of fact, we consider them verities here. Anderson v. Pierce County, 86 Wash.App. 290, 307 n. 9, 936 P.2d 432 (1997).

¶ 13 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).

¶ 14 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. City of Mt. 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).

¶ 15 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 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.

¶ 16 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...