City of Sierra Vista v. DIRECTOR, ADEQ

• Decision Date: 29 April 1999
• Docket Number: No. 2 CA-CV 98-0181.,2 CA-CV 98-0181.
• Citation: 988 P.2d 162,195 Ariz. 377
• Parties: CITY OF SIERRA VISTA, a municipal corporation, Plaintiff/Appellee, v. DIRECTOR, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY, a state agency, Defendant/Appellant.
• Court: Arizona Court of Appeals

988 P.2d 162

195 Ariz. 377

CITY OF SIERRA VISTA, a municipal corporation, Plaintiff/Appellee, v. DIRECTOR, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY, a state agency, Defendant/Appellant.

No. -0181.

Court of Appeals of Arizona, Division 2, Department B.

April 29, 1999.

Review Denied October 26, 1999.

Stuart L. Fauver, Sierra Vista, Attorney for Plaintiff/Appellee.

Janet Napolitano, Arizona Attorney General By Nancy Stone Jamison, Phoenix, Attorneys for Defendant/Appellant.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Based on the administrative law judge's (ALJ) recommended decision, the Arizona Department of Environmental Quality (ADEQ) ordered the City of Sierra Vista to pay wastewater treatment facility annual registration fees for the years 1991 through 1995 as prescribed in A.R.S. § 49-242. The trial court vacated ADEQ's order, finding unconstitutional the session law that purports to make the fees required of individual aquifer protection permit holders pursuant to § 49-242(C) applicable to those, such as the City, who have not yet been issued a permit. We affirm.

Facts and Procedural History

¶ 2 The relevant facts, undisputed by the parties, are as follows. In 1984, the City submitted a notice of disposal to the Arizona Department of Health Services. Such notices provided the health department information about the extent and type of pollutants discharged by facilities, such as the City's wastewater treatment facility, that could potentially enter the state's aquifers. Sometime after it received a notice, the health department would typically issue the facility a ground water quality protection permit.

¶ 3 In 1986, the Arizona legislature enacted the aquifer protection permit program, A.R.S. §§ 49-241 through 49-252, to be administered by the newly established ADEQ. This program replaced the previous groundwater quality protection permit program. Section 49-241.01¹ provides that ADEQ must issue, no later than January 2001, an aquifer protection permit to all "groundwater protection permit facilities," which the section defines as facilities for which either a groundwater quality protection permit or a notice of disposal had been issued. The City has neither obtained nor been issued either a groundwater quality protection permit or an aquifer protection permit, and its facility is still operating under the notice of disposal it filed in 1984.

¶ 4 In 1990, the legislature amended § 49-242² to include an annual fee requirement, which is calculated based on a facility's daily discharge or influent of pollutants. Section 49-242(C) provides in relevant part:

Each owner of a ... wastewater treatment facility to whom an individual permit is issued shall register the permit with the director each year and pay an annual registration fee based on the daily influent of pollutants.

At the same time, the legislature passed a separate provision (the session law),³ which required owners of facilities that were, on the effective date of the chapter, operating pursuant to either a groundwater quality protection permit or a notice of disposal, and that had not yet been issued an individual aquifer protection permit, to pay fees pursuant to certain statutory provisions not at issue here. In 1991, the legislature amended the session law to add the registration fees required under § 49-242.⁴ The amended session law provides in relevant part:

Pending the issuance of individual aquifer protection permits, the fees established pursuant to sections 49-209, 49-242 and 49-747, Arizona Revised Statutes, ... apply to owners of facilities which, on September 27, 1990, are operating pursuant to the filing of a notice of disposal or a groundwater quality protection permit.

¶ 5 In 1995, ADEQ informed the City for the first time that it was required to pay annual registration fees pursuant to § 49-242. The City paid the fees for 1996 and 1997, but appealed to the Office of Administrative Hearings ADEQ's claim for more than $16,000 in registration fees and accrued interest for the years 1991 through 1995. The City argued that, because it had not been issued an aquifer protection permit, it was not obligated to pay the registration fees required of permit holders under § 49-242 and that the session law, which purportedly makes the required fees applicable to those who have not yet been issued a permit, is unenforceable because it conflicts with the statute. In a separate argument, the City asserted that, pursuant to A.R.S. § 49-250(B)(15), it was exempt from the requirement that it obtain an aquifer protection permit.

¶ 6 In concluding that the City was subject to the annual registration fee, the ALJ found that the session law did not conflict with § 49-242 and that although, pursuant to § 49-250(B)(15), the City was exempt from the requirement that it obtain an aquifer protection permit for the reuse of its treated wastewater on crops,⁵ it was still required to obtain such a permit in order to treat its wastewater. The director of ADEQ adopted the ALJ's recommended decision that the City pay the registration fees and accrued interest for the years 1991 though 1995. The City appealed to superior court, which vacated ADEQ's final decision and order, finding the session law an unenforceable attempt by the legislature to amend § 49-242 by mere reference in violation of article IV, part 2, § 14, of the Arizona Constitution. Although not entirely clear from the trial court's order, it does not appear that it addressed whether the ALJ had correctly found the City's wastewater treatment facility not exempt from paying the registration fees pursuant to § 49-250(B)(15). Because our courts decide cases on nonconstitutional grounds if possible to avoid the unnecessary resolution of constitutional issues, Little v. All Phoenix South Community Mental Health Center, 186 Ariz. 97, 919 P.2d 1368 (App.1995), we first address the exemption issue.

Standard of Review

¶ 7 When an administrative decision is appealed, both the superior court and this court decide whether the administrative agency acted illegally, arbitrarily, or capriciously, or whether it abused its discretion. Carondelet Health Servs. v. Arizona Health Care Cost Containment Sys. Admin., 182 Ariz. 502, 897 P.2d 1388 (App.1995); Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., 167 Ariz. 383, 807 P.2d 1119 (App.1990). We review de novo the agency's interpretation and application of the law. Arizona Health Care Cost Containment Sys. Admin. v. Carondelet Health System, 188 Ariz. 266, 935 P.2d 844 (App.1996).

Exemption

¶ 8 Section 49-241(B) provides that a facility that has "[s]urface impoundments including holding, storage settling, treatment or disposal pits, ponds and lagoons" is a discharging facility and that any person who owns or operates a discharging facility must obtain an aquifer protection permit unless exempt under § 49-250. The City's wastewater is treated at its facility in a series of "stabilization ponds." The ALJ found, and we agree, that the City's wastewater treatment plant is a discharging facility.

¶ 9 The City nonetheless argues that, because its treated water is ultimately sprayed on fields to irrigate forage crops used to feed cattle, the City's facility is exempt from obtaining an aquifer protection permit pursuant to § 49-250(B)(15). That statute exempts "from the aquifer protection permit requirement of this article ... [a]pplication of water from any source, including groundwater, surface water or wastewater, to grow agricultural crops or for landscaping purposes." ADEQ responds that § 49-250(B)(15) only exempts the City from the requirement that it obtain an aquifer protection permit for its use of the treated wastewater on agricultural crops, but, as the owner of as a discharging facility, it is nevertheless required to obtain an aquifer protection permit to treat the wastewater. The ALJ agreed with ADEQ, as do we.

¶ 10 When construing a statute, our goal "is to fulfill the intent of the legislature that wrote it." State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). "[T]he best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction." Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). Twenty-four exemptions are enumerated in § 49-250(B). Some of these exemptions pertain to specific types of materials, such as uncontaminated mining overburden; others pertain to particular types of facilities, such as those using Central Arizona Project water for underground storage and recovery projects. Still others pertain to certain types of activities and uses, such as household and domestic activities, the noncommercial use of consumer products by the public, and the provision upon which the City relies, the application of water to grow agricultural crops. Because the statute expressly exempts certain types of facilities, but exempts only that use of treated wastewater applied on crops and not those that supply the treated water, we find the statutory language clearly evinces the legislature's intent not to exempt the latter facilities. In light of this determination, we agree with the ALJ that § 49-250(B)(15) does not exempt the City from the requirement that it obtain an aquifer protection permit. Accordingly, we turn to the constitutional issue.

Constitutionality of the Session Law

¶ 11 In finding against the City on its claim that the session law was unenforceable because it conflicted with § 49-242, the ALJ concluded as follows:

Rather than conflict with A.R.S. § 49-242 as argued by [the City], the Session Law supplements it. The process of approving or denying aquifer protection permits is scheduled to be completed by January 1, 2001. While A.R.S. § 49-242 specifically requires aquifer protection permit holders to annually register the issued permit with ADEQ's director and pay an annual registration

...