Johnson v. Nebraska Environmental Control Council

• Decision Date: 30 November 1993
• Docket Number: No. A-91-1174,A-91-1174
• Citation: 2 Neb.App. 263,509 N.W.2d 21
• Court: Nebraska Court of Appeals
• Parties: Kenneth JOHNSON, Appellant, v. NEBRASKA ENVIRONMENTAL CONTROL COUNCIL and Nebraska Department of Environmental Control, Appellees, and Waste-Tech Services, Inc., Intervenor-Appellee.

Page 21

509 N.W.2d 21

2 Neb.App. 263

Kenneth JOHNSON, Appellant, v. NEBRASKA ENVIRONMENTAL CONTROL COUNCIL and Nebraska Department of Environmental Control, Appellees, and Waste-Tech Services, Inc., Intervenor-Appellee.

No. A-91-1174.

Court of Appeals of Nebraska.

Nov. 30, 1993.

Patricia A. Knapp of Bailey, Polsky, Cope, Wood & Knapp, Lincoln, for appellant.

Don Stenberg, Atty. Gen. and Linda L. Willard, Lincoln, for appellees.

Mark A. Christensen of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Marcus L. Squarrell and Robert F. Copple of Parcel, Mauro, Hultin & Spaanstra, P.C., and Ruth Brammer Johnson, Denver, CO, for intervenor-appellee.

CONNOLLY, HANNON, and MILLER-LERMAN, JJ.

HANNON, Judge.

The plaintiff, Kenneth Johnson, brought this declaratory judgment action against the Nebraska Environmental Control Council (Council) under Neb.Rev.Stat. § 84-911 (Reissue 1987) to challenge the validity of an amendment to the Council's rules and regulations, which amendment was promulgated by the Council. The challenged amendment was adopted after the intervenor, Waste-Tech Services, Inc. (Waste-Tech), petitioned the Council for a rule change which would exclude waste produced by Waste-Tech's incinerator in Kimball, Nebraska, from the Council's list of hazardous wastes, which are set forth under title 128 of the Nebraska Administrative Code. The Nebraska Department of Environmental Control (Department) was made a party defendant after the court sustained a demurrer. The district court granted the separate motions for summary judgment filed by the defendants and the intervenor and dismissed the plaintiff's action. The plaintiff appeals to this court and assigns both procedural and substantive errors. We reverse the judgment and remand the cause for further proceedings because the Council did not follow the required procedures, and therefore, we do not reach the substantive issues.

BACKGROUND INFORMATION

A summary of the statutory basis for the Department's and the Council's authority, as well as a summary of the pertinent rules and regulations, will help clarify the issues of this case. The Nebraska Environmental Protection Act (NEPA), Neb.Rev.Stat. §§ 81-1501 to 81-1533 (Reissue 1987 & Cum.Supp.1992), was adopted in 1971. This act was adopted at the behest of the U.S. government, and it provides that regulations adopted by the Council "shall in all respects comply with the Environmental Protection Act and the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq." See § 81-1505(13)(a).

Section 81-1505 (Reissue 1987), which is applicable to the case at hand, provides in significant part: "(1) In order to carry out the purposes of the Environmental Protection Act, the council shall adopt rules and regulations which shall set standards of air, water, and land quality...." This lengthy statute then sets forth the matters the Council shall consider in adopting rules and regulations regarding water quality standards, various pollutants, mineral explorations, livestock waste, hazardous waste, and several other common sources of pollution. Pursuant to this statutory authority, the Council adopted title 128 of the Nebraska Administrative Code, which contains substantive rules governing pollution, including a listing of what shall be considered hazardous waste, and title 115 of the Nebraska Administrative Code, which provides the procedural rules under which the Council and the Department operate. Title 115 was amended by the Department in August 1993; however, the version of the rules applicable to the case at hand is the title 115 rules which went into effect in December 1985 and July 1987.

The controlling issue in this appeal is whether the Council followed the applicable statutes and regulations when it adopted an amendment to 128 Neb.Admin. Code, ch. 15 (1989), which authorized Waste-Tech to build the incinerator.

PLAINTIFF'S SECOND AMENDED PETITION

The trial court sustained a demurrer to the plaintiff's amended petition on the ground that the Department was a necessary party. The plaintiff filed a second amended petition and made the Department a party.

In his second amended petition, Johnson, who lives near Kimball, specifically alleged the date and place of each of the Council's meetings at which the amendment to title 128, chapter 15, which authorized Waste-Tech to build the incinerator was considered, as well as the date and place of each of the several hearings at which anything relating to the amendment was considered. Johnson also set forth the date and type of notice given for the meetings and hearings and the action taken. This information will be set forth below when the evidence on the proceeding is summarized and discussed.

In his first cause of action, Johnson alleged in his second amended petition that the adopted amendment, which excluded Waste-Tech's waste from the list of hazardous waste, violates the U.S. Constitution and the Constitution of Nebraska in the following respects: (1) The Council's exclusion of waste generated by Waste-Tech is arbitrary and capricious; (2) the amendment grants Waste-Tech exclusive privileges or immunities, in violation of article III, § 18, of the Constitution of Nebraska; (3) the amendment violates the Due Process Clause; and (4) the Council has no adequate mechanism for separating the legislative, executive, and judicial powers delegated to it by the Legislature.

Johnson also alleged that the Council had exceeded its statutory authority under NEPA and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. (1988). He further alleged that the Council does not have the authority to define hazardous waste as nonhazardous and does not have the authority to exclude from regulation waste emitted from a particular facility. Johnson also alleged that the Council did not comply with the statutory requirements or the Council's own rules, as the Council did not conduct its hearings in the area to be affected by the proposed change in the standards and did not give proper notice to the area to be affected.

In his second cause of action, Johnson alleged that on February 16 and May 17, 1989, the Council met with Waste-Tech in nonadvertised meetings. He asserted that the public was not allowed to attend these meetings and that no minutes were kept of these meetings. The plaintiff contended that these actions violated Nebraska public meeting law, Neb.Rev.Stat. § 84-1408 et seq. (Reissue 1987), which is applicable to the case at hand, particularly § 84-1413.

The transcript does not show whether the defendants filed an answer to the plaintiff's second amended petition. The court granted the defendants' and intervenor's separate motions for summary judgment and dismissed the plaintiff's second amended petition.

ASSIGNMENTS OF ERROR

Johnson alleges that the court erred (1) in sustaining the Council's demurrer to his amended petition on the basis that the Department had not been joined in the action as a necessary party and (2) in granting the motions for summary judgment, because the record discloses that there are genuine issues of material fact. In connection with the second assignment of error, Johnson argues that he is entitled to a declaratory judgment and that, therefore, the trial court erred in granting the motions for summary judgment and dismissing his second amended petition. Johnson asserts that (1) the amendment was arbitrary because the Council acted on insufficient information when it adopted the amendment; (2) the amendment exceeds the Council's statutory authority because the amendment does not comply with the federal RCRA; (3) "delisting" the Waste-Tech facility is a grant of a special privilege to Waste-Tech in violation of article III, § 18, of the Constitution of Nebraska; (4) the amendment exceeds the Council's statutory authority because the power to delist waste is distinct from the power to list waste; (5) the Council did not conduct a hearing in the area affected, as required by statute, and did not give notice, as required by statute and the Council's own regulations; and (6) the Council's February 16, 1989, meeting violated Nebraska public meeting law. Our decision is based upon the fifth and sixth assertions, which raise procedural questions, and we find that discussion of the other issues would not be helpful.

DEMURRER

We shall begin by considering the first error assigned by the plaintiff, that of the court's granting a demurrer on the ground that the Department was a necessary party. Upon granting the demurrer, the court allowed Johnson to modify his amended petition to make the Department a party defendant. " 'When a demurrer is sustained, and the pleader desires to amend, it has been held that he thereby waives his exception to the ruling of the court.' " Papillion Times Printing Co. v. Sarpy County, 85 Neb. 397, 400, 123 N.W. 452, 453 (1909). As the plaintiff has modified his amended petition upon demurrer, as opposed to standing on his amended petition and appealing the demurrer, he has waived his objection to the court's grant of a demurrer regarding the joinder of parties. See id. Therefore, we cannot review this issue.

STANDARD OF REVIEW

All of the other issues in this appeal arise under the question of whether the court should have granted the defendants' and intervenor's separate motions for summary judgment. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Turek v. St. Elizabeth Comm. Health Ctr., 241 Neb. 467, 488 N.W.2d 567 (1992); Purbaugh v. Jurgensmeier, 240 Neb. 679, 483 N.W.2d 757 (1992); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). Moreover, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and...