Taylor v. Department of Health and Environment
| Decision Date | 23 October 1981 |
| Docket Number | No. 52231,52231 |
| Citation | 634 P.2d 1075,230 Kan. 283 |
| Parties | , 12 Envtl. L. Rep. 20,588 Stanley TAYLOR d/b/a Crop Clinic, Appellee, v. The DEPARTMENT OF HEALTH AND ENVIRONMENT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action to assess a penalty against the operator of an aerial spraying service for stream pollution and damage to aquatic life caused by drifting pesticides, the record is examined and it is held : The action should have been brought under the Kansas Pesticide Use Law, K.S.A. 2-2413 et seq. (Weeks 1975), rather than under the statutes pertaining to water supply and sewage, K.S.A.1975 Supp. 65-161 et seq.
Robert T. Stephan, Atty. Gen., and Janet A. Chubb, Asst. Atty. Gen., were on the brief for appellant.
No appearance by appellee.
This is an appeal by the State in a water pollution action brought under K.S.A.1975 Supp. 65-161 et seq. The statute provides for appeal to the district court from administrative orders and for appeal to the Supreme Court from the final decision of the district court. K.S.A.1975 Supp. 65-170d(d ). The appellee did not file a brief or appear to argue the appeal.
The facts giving rise to the appeal in this case are not in controversy. Appellee Stanley Taylor, operator of an aerial spraying service known as Crop Clinic of Tulia, Texas, sprayed 98.4 acres of wheat on Rex McDanial's farm north of Argonia, Kansas, on February 25, 1976. Two days later, an employee of the Sumner County Health Department received a report of a fish kill on Sandy Creek north of Argonia; he investigated and found dead and dying fish in an area of Sandy Creek near the east boundary of the McDanial wheat field. Subsequent laboratory analysis of fish and water samples from the kill area revealed lethal concentrations of endrin, a chemical Taylor had used in spraying the wheat field. Appellant's brief, however, also refers to sediment samples collected one month after the kill which, on analysis, revealed higher concentrations of endrin upstream than in the kill area. We only note this inconsistency in passing since our disposition of the case makes a factual determination unnecessary at this point.
On March 31, 1976, the Department of Health and Environment issued an order assessing a civil penalty of $3,500 pursuant to K.S.A.1975 Supp. 65-170d against Stanley Taylor, d/b/a Crop Clinic for improper application of pesticides which caused water pollution in violation of K.S.A.1975 Supp. 65-164 et seq., and regulations K.A.R. 28-16-27 and 28. After exhausting his administrative remedies, Taylor appealed to the district court which held the Department had no jurisdiction over Taylor and set the order aside. The district court concluded the original action should have been brought under K.S.A.1975 Supp. 65-171d. The State appeals from this decision of the district court.
The statutes governing the regulation of water pollution in this state first appeared in primitive form in 1907 and have been repeatedly amended and expanded as environmental concerns have intensified. These amendments have been enacted in a haphazard fashion which has resulted in an overlapping and confusing regulatory scheme. In construing the statutes, however, we are required to read and construe them together so as to harmonize them and give effect to their various provisions, if that can be done without destroying the effect, intent and purpose for which they were enacted. Thoman v. Farmers & Bankers Life Ins. Co., 155 Kan. 806, 130 P.2d 551 (1942).
This court, after careful consideration of the case at bar as well as a comprehensive review of Kansas pollution statutes, has concluded the district court reached the correct result but for the wrong reason. Analysis of the statutes pertaining to water supply and sewage, K.S.A.1975 Supp. 65-161 et seq., reveals no legislative intent to include stream pollution and damage to aquatic life caused by the drift from aerial application of pesticides. K.S.A.1975 Supp. 65-164 is a key provision in determining legislative intent. It provides in part:
The act is directed to the discharge of...
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