City and County of Denver v. Eggert

Decision Date21 June 1982
Docket NumberNo. 1,No. 81SA425,1,81SA425
Citation647 P.2d 216
PartiesCITY AND COUNTY OF DENVER, a municipal corporation of the State of Colorado, Plaintiff-Appellant, Colorado Association of Commerce and Industry, Plaintiff in Intervention Appellant, and Chemical Waste Management, Inc., a Delaware corporation; Colorado Disposal, Inc., a Colorado corporation; Waste Management, Inc., a Delaware corporation, Defendants-Appellants, v. Thomas EGGERT, Charles Pitts, and John Nicholl, in their official capacities as members and commissioners of the Board of County Commissioners of the County of Arapahoe; The Board of County Commissioners of the County of Arapahoe; The Metropolitan Denver Sewage Disposal District, a political subdivision of the State of Colorado; The Tri-County District Health Department, a political subdivision of the State of Colorado; The State of Colorado; The Colorado Department of Health, a department of the State of Colorado; Frank Traylor, in his official capacity as Executive Director of the Department of Health; Shell Oil Company, a Delaware corporation; Shell Chemical Company, a division of Shell Oil Company; John Doe(s), Defendants-Appellees, and Citizens Against Lowry Landfill and City of Aurora, Defendants and Intervention-Appellees.
CourtColorado Supreme Court

Max P. Zall, City Atty., John L. Stoffel, Jr., Robert M. Kelly, George J. Cerrone, Jr., Asst. City Attys., Denver, for the City and County of Denver.

Holland & Hart, John Fleming Kelly, Jeffrey C. Pond, and Davis, Graham & Stubbs, John M. Sayre, Gregory J. Hobbs, Jr., Denver, for Colorado Ass'n of Commerce and Industry.

Saunders, Snyder, Ross & Dickson, P. C., Eugene F. Megyesy, Jr., Martha Phillips Feiten, Denver, for Chemical Waste Management, Inc.; Colorado Disposal, Inc.; and Waste Management, Inc.

Peter L. Vana, III, Arapahoe County Atty., Littleton, and McMartin, Burke, Loser & Fitzgerald, P. C., Ronald S. Loser, Herbert C. Phillips, Englewood, for Thomas Eggert, Charles Pitts, John Nicholl and the Board of County Commissioners of the County of Arapahoe.

Inman & Flynn, P. C., John J. Flynn, Jr., Denver, for Metro Denver Sewage Disposal Dist. No. 1.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Janice L. Burnett, David K. Rees, Asst. Attys. Gen., Denver, for the State of Colo., Colorado Dept. of Health; and Frank Traylor, Executive Director of the Dept. of Health.

Musick & Cope, Richard M. Foster, Robert C. Kerr, Boulder, for Citizens Against Lowry Landfill.

Claybourne M. Douglas, Asst. City Atty., Aurora, for the City of Aurora.

DUBOFSKY, Justice.

The plaintiff, City and County of Denver, its contractor, Chemical Waste Management, Inc. (Chemical Waste) and Metropolitan Denver Sewage Disposal District No. 1 (Metro) 1 appeal a judgment of the Denver district court affirming the defendant Arapahoe County Commissioners' order that Denver, Chemical Waste and Metro cease and desist depositing hazardous wastes and sewage sludge at the Lowry Landfill. Denver's complaint, and responsive cross-claims and counter-claims, joined requests for declaratory and injunctive relief with a request for review of the cease and desist order under C.R.C.P. 106(a)(4). The district court heard only the C.R.C.P. 106(a)(4) claim and determined that it did not have jurisdiction to review the order, which was in the form of a resolution with "findings of fact" and a "decision," because the Commissioners were acting in their quasi-legislative capacity. In the alternative, the district court ruled that even if the Commissioners' order was quasi-judicial in nature, they did not exceed their jurisdiction, abuse their discretion or act arbitrarily or capriciously in adopting the resolution. We reverse the judgment of the district court.

We conclude that the cease and desist order issued by the Commissioners was quasi-judicial and was not preceded by adequate notice. Because the County failed to provide adequate notice, the hearing which followed the notice could not be an appropriate basis for a quasi-judicial decision. Therefore, the cease and desist order is void. However, we address concerns which will arise in a new proceeding. We remand the case to the district court with directions to dismiss all of the pending claims.

I.

In July 1964, Denver acquired from the federal government the old Lowry bombing range, 2,680 acres in Arapahoe County. That year Denver began operating a sanitary landfill on 300 acres of the Lowry land, and beginning in 1969, Metro spread domestic sewage sludge on a portion of the land. Three years after Denver began the landfill operation, the General Assembly adopted the Solid Wastes Act which required that the operator of a sanitary landfill obtain a certificate of designation from the county in which the landfill is located. Colo.Sess.Laws 1967, ch. 358, 36-23-1 at 759, now at sections 30-20-101 et seq., C.R.S.1973 (1977 Repl.Vol. 12 and 1981 Supp.). 2 Denver applied to Arapahoe County for a certificate of designation under the Solid Wastes Act, and on September 16, 1968, the County granted a certificate designating the entire tract of land deeded from the United States to Denver for a sanitary landfill operation.

Between 1968 and 1980, Denver's landfill operation accepted various types of hazardous waste in addition to non-hazardous trash and debris. The Environmental Protection Agency (EPA), which monitors hazardous waste disposal sites under the Resources Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq (Supp. IV 1980), listed the Lowry Landfill as one of the facilities known to have received hazardous waste which could result in significant environmental damage. Also concerned about hazardous waste at the Lowry Landfill, Dr. Frank Traylor, director of the Colorado Department of Health, on May 14, 1980, wrote to Denver's mayor, stating that the Health Department's investigation of the site revealed that it was not designed or constructed to receive hazardous wastes and that monitoring indicated contamination of groundwater in the alluvial aquifer. 3

To meet the concerns of the Department of Health and the EPA, Denver contracted with a private firm, Waste Management, Inc. for its subsidiary, Colorado Disposal, Inc., to operate the sanitary landfill, and for another subsidiary, Chemical Waste, to design and construct a new hazardous waste facility, the Denver-Arapahoe Chemical Waste Facility (new facility), on sections 31 and 32 of the Lowry bombing range. The new facility, available for disposal of hazardous wastes from a five-state region, utilizes several technical processes including chemical landfill, drum burial, chemical deodorization, and solar evaporation. Waste Management invested initial capital of $5,000,000 and began construction of the new facility in June, 1980. Under the contract, Denver is to receive 12% of the gross profits of the operations, but not less than $250,000 per year.

On August 5, 1980, Chemical Waste, Colorado Disposal, and Metro applied to Arapahoe County for a transfer of Denver's 1968 certificate. The Commissioners granted a temporary certificate of designation for 120 days, pending a hearing on the transfer application. 4 However, by resolution of October 27, 1980, the Commissioners reversed themselves and determined that no transfer of the original certificate of designation was necessary and that Denver, as owner of the land, would continue to be responsible for operations at the Lowry Landfill. In the same resolution, the Commissioners directed that a public hearing be held on November 24, 1980, to "review the engineering and operating details of the Lowry Landfill...." Both the resolution and the subsequent public notice, published in several Arapahoe County newspapers, stated: "The purpose of said hearing shall be to allow information regarding the landfill operation to be made public in the interests of the health, safety and welfare of Arapahoe County citizens."

At the November 24th hearing, the County Attorney spoke first. He stated that the County was no longer considering a transfer of Denver's 1968 certificate of designation and that the hearing was for the purpose specified in the October 27th resolution. Thereafter, Denver, Colorado Disposal, Chemical Waste and Metro representatives gave brief statements. Their attorneys did not participate in the hearing. Representatives of the Tri-County Department of Health, State Department of Health, and the Colorado Geological Survey, the Colorado Attorney General, and the Mayor of Aurora also made presentations. The consensus of those who made comments was that while the contract operation represented "current state of the art technology and management practices," and constitutes "a substantial improvement of the past operation of the site," the hazardous and chemical waste facility should be moved to a more geologically suitable site in an area with fewer nearby residents. During the public comment portion of the hearing, a number of individuals spoke in opposition to the operations at Lowry Landfill. At no time during the hearing did the Commissioners announce what they intended to do with the information presented.

On December 8, 1980, the Commissioners adopted Resolution 1140-80 listing 24 specific findings of fact which concluded that Denver "has expanded the operation of the Lowry Landfill beyond the intent and purpose contemplated by the Board of County Commissioners when they issued the (1968) Certificate of Designation." The Commissioners allowed the sanitary landfill operated by Colorado Disposal to continue, but decided that Metro's sludge placement operation was unacceptable and directed it to cease by December 31, 1982. 5 Finally, the Commissioners determined that the new hazardous waste facility posed a substantial health and safety hazard to the residents of Arapahoe County and that...

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