Pork Motel, Corp. v. Kansas Dept. of Health and Environment

• Decision Date: 02 December 1983
• Docket Number: Nos. 55087,55352,s. 55087
• Parties: , 20 ERC 2011 PORK MOTEL, CORP., Appellant, v. The KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT, Appellee.
• Court: Kansas Supreme Court

Page 1126

673 P.2d 1126

234 Kan. 374, 20 ERC 2011

PORK MOTEL, CORP., Appellant, v. The KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT, Appellee.

Nos. 55087, 55352.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. Rules or regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory power of the agency have been found void. Administrative rules and regulations to be valid must be appropriate, reasonable and not inconsistent with the law.

2. The legislature has by statute charged the secretary of the Kansas Department of Health and Environment with specific duties to protect the health and environment of the citizens of this state. Two areas in which the legislature has stated the public policy of the state and granted authority to the secretary of the Kansas Department of Health and Environment to carry out that policy are: (1) protecting our water supply and controlling discharge of sewage into the water supply (K.S.A. 65-161 et seq.), and (2) achieving and maintaining levels of air quality which protect human health and safety (K.S.A. 65-3001 et seq.). To carry out the legislative policy, the secretary of the Kansas Department of Health and Environment has been granted the authority to issue permits regarding water supply and the discharging of sewage into the water supply, and allowed to set conditions to protect and maintain certain levels of air quality.

3. The court's scope of review in determining whether or not the secretary of the Kansas Department of Health and Environment acted fraudulently, arbitrarily or capriciously is limited. State Corporation Com'n of Kansas v. United States, 184 F.Supp. 691 (D.Kan.1959). The arbitrary and capricious test relates to whether a particular action should have been taken or is justified, such as the reasonableness of an agency's exercise of discretion in reaching a determination or whether the agency's action is without foundation in fact.

4. A district court and this court cannot substitute their judgment for that of an administrative board. On appeal, the court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by the evidence, and (3) the tribunal's action was within the scope of its authority. Hemry v. State Board of Pharmacy, 232 Kan. 83, 652 P.2d 670 (1982).

5. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision. The Administrative Procedure Act's separation of function doctrine requires only that the prosecutor and the adjudicator each be responsible to the agency head by a separate chain of authority.

6. The combination of investigating and judging functions in an agency does not violate due process, Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), and there is no question of the power of the legislature to delegate such a dual role to an agency. In re Larsen, 17 N.J.Super. 564, 86 A.2d 430 (1952).

7. The power to punish for contempt of court does not arise from statutory legislative action, but is inherent in the court itself. In re Millington, 24 Kan. 214 (1880). The statutory direction for finding one in contempt in this case is found in K.S.A. 20-1201 et seq. The procedure followed to obtain valid service must conform with that procedure prescribed in Chapter 20 of the Kansas Statutes Annotated. Process to bring the accused before the court must be served by the sheriff or some other person appointed by the court for that purpose. Where the accused has not waived the service requirement of K.S.A. 20-1204a(b ), the court is without jurisdiction to proceed.

Robert S. Jones, of Norton, Wasserman, Jones & Kelly, Salina, argued the cause, and Norman R. Kelly, Salina, of the same firm, was with him on briefs, for appellant.

Emily E. Cameron and L. Patricia Casey, Topeka, argued the cause and were on the briefs, for appellee.

David K. Palmer, of Beving, Swanson & Forrest, P.C., Des Moines, Iowa, was on the amicus curiae brief for National Pork Producers Council, Kansas Livestock Ass'n, Kansas Pork Producers Ass'n, and the National Agricultural Legal Fund.

LOCKETT, Justice:

Case No. 55,087 is an appeal from an administrative order issued by the secretary of the Kansas Department of Health and Environment. On July 17, 1981, the secretary issued ex parte findings and conclusions regarding alleged violations by Pork Motel, Corp. of certain conditions made a part of a water pollution (sewage discharge) permit previously issued by the Kansas Department of Health and Environment (KDHE). This ex parte order was appealed to the secretary and a full hearing was held. Thereafter, the secretary issued an order and this was then appealed to the Saline County District Court. Pork Motel, Corp. appealed from the district court's affirmation of the secretary's previous order.

Case No. 55,352 is an appeal from a Memorandum Decision of the Saline County District Court finding Pork Motel, Corp. to be in contempt of its order in 55,087, and fining Pork Motel, Corp. and ordering it to do certain acts and reduce the head count at appellant's swine facility. The appeals in 55,087 and 55,352 have been consolidated.

Pork Motel is a swine finishing facility located in the Saline river valley approximately ten miles northwest of Salina, Kansas. When constructed there were approximately 40 families living within a five-mile radius of Pork Motel. Several dwellings are within the one-quarter to one-half mile range of the feed lot. The facility has the capacity of feeding 4,400 swine.

Plans for the construction of the facility were initiated in September, 1974. An engineering firm was engaged, and plans and specifications were submitted to the KDHE. After the facility began operation, odor complaints were received by KDHE from residents located in close proximity to Pork Motel.

On May 6, 1977, Dwight Metzler, Secretary of KDHE, issued an order setting out steps to be taken to abate the odor nuisance. Secretary Metzler modified his order on July 28, 1977, following a public hearing.

The modified order was appealed to the district court in Saline County, Kansas. Judge Richard Wahl approved the modified order and ordered that Pork Motel comply with it. No further appeal was taken at that time.

On March 28, 1978, Pork Motel, pursuant to the secretary's order of July 28, 1977, submitted for approval a plan of operation for its facility. That plan of operation was approved by KDHE.

The Water Pollution Control Permit for Pork Motel came up for renewal in April of 1979. Following another public hearing, a permit for a nondischarging facility was issued May 26, 1979, to be effective June 1, 1979, for a period of five years. The permit contained conditions concerning pumping of retention lagoons, keeping sufficient space in lagoons for rainfall and on-site testing for dissolved oxygen after rain.

The June 1, 1979, permit also contained special permit limitations and conditions relating to the waste treatment facilities at Pork Motel. The special conditions required the resumption of the feeding operation would be by incremental phases, beginning with 1,100 units, moving to 2,200 units and so forth until full capacity of 4,400 units was reached. Each incremental phase was to be proposed by Pork Motel and approved by KDHE. The special conditions and limitations were imposed to assure that significant nuisance odors were controlled. The permit stated if the plan of operation set forth by Pork Motel and compliance with permit limitations and conditions failed to prevent and control significant nuisance odors, the Pork Motel would have to discontinue receiving new animals until alternative measures could be proposed and approved.

Due to economic conditions existing, Pork Motel did not actually undertake to resume feeding operations until September, 1980. In December, 1980, approval was granted by KDHE allowing Pork Motel to proceed with the second phase expanding to 2,200 animals. Certain modifications in the waste treatment facility had been proposed by Pork Motel. Specifically, concrete sedimentation pits were being constructed to trap manure and prevent it from entering the waste treatment lagoon system.

On March 24, 1981, a new Water Pollution Permit was issued to Pork Motel. The new permit took into account the addition of the concrete sedimentation pits in the facility's waste treatment operational plan. Again, specific limitations and special conditions were set out in the permit. In general, those required Pork Motel to:

1. Pump the concrete sedimentation manure pits following every significant rainfall and have the contents hauled to cropland by slurry wagon.

2. Provide adequate storage facilities for rainfall occurrences.

3. Provide for dewatering and disposal activities for the waste retention structures.

4. Provide for an incremental resumption of the feeding operation, with the notation that phases one and two were completed under the previous permit and that phase three would be more than 3,300 units, with the fourth phase of 4,400 units. Again, it was set out that each phase must be completed to the full satisfaction of KDHE.

5. Require that on-site testing for dissolved oxygen content in lagoon cell number one be made by the use of a dissolved oxygen probe for three days following rainfall events, or as otherwise specified by KDHE. The permittee was also required to keep information, such as rainfall records and temperatures, with all data being recorded and available for submission to the department upon request.

The new permit, issued March 24, 1981, also...