Opinion
No. 108,471.
2013-09-13
The BOARD OF COUNTY COMMISSIONERS OF SUMNER COUNTY, Kansas, et al., Appellants, v. Robert MOSER, Sec. KS. Dept. of Health and Environment, and Waste Connections of Kansas Inc., Appellees.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge. Robert V. Eye, of Kauffman & Eye, of Topeka, for appellants. Nancy L. Ulrich, of Kansas Department of Health and Environment, for appellees Secretary of KDHE and KDHE.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge.
Robert V. Eye, of Kauffman & Eye, of Topeka, for appellants. Nancy L. Ulrich, of Kansas Department of Health and Environment, for appellees Secretary of KDHE and KDHE.
Robert H. Epstein and Ryan C. Hardy, of Spencer Fane Britt & Browne, LLP, of St. Louis, Missouri, and John Terry Moore, of Moore Martin, L.C., of Wichita, for appellee Waste Connections of Kansas, Inc.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Waste Connections of Kansas, Inc. (WCKS) applied for and received a permit from the Kansas Department of Health and Environment (KDHE) for the construction and operation of a solid waste landfill in Harper County, Kansas. The Board of County Commissioners of Sumner County (Sumner County), Tri–County Concerned Citizens, Inc. (TCCC), and Dalton Holland filed an action under the Kansas Judicial Review Act (KJRA) opposing the granting of the permit and seeking to invalidate it. The Shawnee County District Court affirmed KDHE's action. Sumner County, the TCCC, and Holland (hereafter referred to collectively as appellants) filed this appeal of that decision. The appellants argue two issues which they claim involve hydrogeologic problems with the permit that raise a potential for groundwater contamination. They contend KDHE failed to ensure that WCKS' permit application adequately characterized potential pathways for contaminant migration and KDHE failed to properly establish a minimum 5–foot separation between the liner and projected groundwater tables throughout the proposed landfill site.
We first find the district court did not have subject matter jurisdiction to address the issue of the separation between the landfill and the groundwater table since appellants did not raise it in their petition for judicial review. Neither do we. We further find that even if we had jurisdiction, the issue would not provide appellants a basis for relief. The district court did have jurisdiction to consider the characterization of the pathways issue. On that issue, we conclude KDHE acted in accordance with applicable law and regulations, its granting of the permit was supported by substantial evidence, and its action was not arbitrary, capricious, or unreasonable.
Facts
For an understanding of the issues on appeal, a somewhat detailed recitation of the lengthy process leading up the issuance of the KDHE permit is necessary.
The Permit Application Process
In July 2001, WCKS entered into an option contract for the purchase of 985 acres in northeastern Harper County, commonly referred to as Plumb Thicket. Shortly thereafter, WCKS sought a special use zoning permit with Harper County for use of a 229–acre area of the property as a solid waste disposal facility. Harper County approved the special use zoning permit on March 5, 2002.
During the first half of 2002, WCKS with the advice and assistance of its consultant, Golder Associates (Golder), began the preapplication process for the-proposed landfill which included the preparation of a Phase I hydrogeologic report and meetings with KDHE to determine necessary steps in the application process. Golder submitted several reports to KDHE, which were subsequently revised numerous times to address concerns or adopt suggestions offered by KDHE. In early July, the reports were supplemented by a hydrogeological evaluation of landfill performance (HELP) analysis of the proposed landfill liner system. The HELP analysis was revised in December 2002 using data collected from a USAE Waterways Experimental Station.
On August 13, 2002, WCKS officially filed its permit application with KDHE. On September 16, 2005, KDHE approved the application conditioned upon several special requirements. During this almost 3–year interim, much activity occurred on the part of all parties concerned. An extensive number of meetings among KDHE officials took place, along with reviews by several outside entities hired by the parties, public forums, consultation with professional experts, numerous communications and meetings between the parties, and the issuance of several reports. There was also litigation over Harper County's issuance of the special use permit on the Plumb Thicket land.
Soon after the filing of the application, KDHE asked the Kansas Geological Survey (KGS) at the University of Kansas to independently examine the proposed landfill plans because of the significant geologic and hydrogeologic implications of the proposed landfill. KGS provided KDHE a memo with comments and concerns regarding the proposal. KDHE passed these concerns on to WCKS/Golder and requested further hydrogeologic data. AfEer revising its HELP analysis with the collected data, WCKS and Golder responded to KDHE's concerns along with an amended permit application.
On January 10, 2003, KDHE responded by letter to WCKS' revised hydrogeologic report and sampling plan. KDHE was mainly concerned that WCKS' proposed low-flow technique of sampling would not provide a sufficient sample for determining groundwater contamination. Over the next couple of weeks, KDHE and WCKS/Golder exchanged several pieces of correspondence dealing with other concerns of KDHE.
In February 2003, KDHE prepared and disseminated a draft permit for public review and comment. A public meeting on the proposed landfill permit took place in Harper County on April 3 and 4. During the review period that followed, Sumner County hired Terrane Resources Co. (Terrane) to review the materials WCKS/Golder submitted with the permit application. Terrane submitted a written report, expressing objections to several of those materials. WCKS/Golder prepared written responses to several of the more serious concerns raised at the public meeting and specifically responded to the hydrogeologic concerns raised by Terrane.
On July 11, 2003, KDHE suspended its review of the permit application pending the resolution of a lawsuit filed against the Board of County Commissioners of Harper County regarding issuance of the special use zoning permit for the construction and operation of a landfill on the Plumb Thicket land. Nevertheless, KDHE charted and summarized the public comments received at the public meeting and through written correspondence.
In the meantime, the Kansas Legislative Post–Audit Committee submitted a report regarding KDHE's compliance with applicable regulations governing landfill permit approval in June 2004. The committee concluded that WCKS' permit application included all of the required materials and KDHE had conducted a reasonable review of the permit application.
In December 2004, the Harper County District Court reinstated WCKS' special use zoning permit pursuant to the mandate in Tri–County Concerned Citizens, Inc. v. Board of Harper County Comm'rs., 32 Kan.App.2d 1168, 95 P.3d 1012,rev. denied 278 Kan. 852 (2004). KDHE continued its review of WCKS's application to operate a landfill.
In early 2005, WCKS/Golder submitted hydraulic conductivity values for the proposed landfill design. While KDHE approved these, it refused to accept the proposed averaged 20–foot separation between the bottom of the landfill and the water table and instead required an actual 7–foot separation the entire length of the liner.
In March 2005, WCKS/Golder issued a technical memorandum that responded to Terrane's objections referred to earlier. Terrane replied with a list of continuing concerns in July 2005.
In August 2005, personnel with KDHE who had studied the concerns raised in the public comments submitted a memo to the KDHE director of the Division of Environment, indicating acceptability of the permit application with recommended modifications and adequate engineering controls. The memo also noted KGS's concerns with the proposed landfill plans. The summary noted:
“The Pleistocene deposits in the western part of the panhandle could be considered as a marginal aquifer and these deposits will not be completely removed from this area. The separation distance between the proposed landfill base and the water-table in the Pleistocene deposits in the panhandle area do not appear to meet the required 5–foot separation distance. Drains may be needed in this area to reduce the water-table level in the remaining overburden. Monitoring wells are recommended for installation in the Pleistocene overburden just outside the panhandle area of the landfill.”
KDHE staff members then disseminated among themselves several internal memos urging special conditions be imposed on the landfill permit to address the hydrogeologic concerns. In September 2005, KDHE released its responses to the public comments received and subsequently authorized a 12–month review and comment period.
The Board of Harper County Commissioners engaged Burns & McDonnell to conduct a study of the hydrogeologic issues. That firm then submitted a summary of its report on September 13, 2005. WCKS and Golder responded to this summary with another technical memorandum.
As we stated, KDHE approved the permit on September 16, 2005, conditioned on several special requirements.
The Tortuous Path This Litigation Has Taken In the District Court
Appellants filed a timely petition for judicial review, alleging multiple regulatory violations by KDHE in approving the permit application. They amended their petition twice. WCKS moved to intervene, and the district court approved the motion without opposition. WCKS filed a motion to strike appellants' request for attorney fees, a motion to dismiss or order clarification, and an answer. KDHE similarly filed a motion for judgment on the pleadings or for summary judgment and an answer.
The district court dismissed the petition for lack of standing. Appellants appealed that ruling. The Kansas Court of Appeals reversed the district court, which order was affirmed on appeal to the Kansas Supreme Court, and the case was remanded with directions to the district court. See Board of Sumner County Comm'rs. v. Bremby, 286 Kan. 745, 189 P.3d 494 (2008).
On remand, the district court permitted a second amended petition but subsequently struck some portions of the petition as failing to relate back to the original petition. After the parties had submitted trial briefs outlining their respective positions, the district court filed a memorandum decision affirming KDHE's issuance of the permit.
Scope of Review
K.S.A. 65–3412 provides that “[a]ny action of the [S]ecretary [of Health and Environment] pursuant to this section is subject to review in accordance with the act for judicial review and civil enforcement of agency actions [KJRA].” The KJRA, K.S.A. 77–601 et seq. defines the scope of judicial review of an administrative agency's action and K.S.A. 77–621(c) establishes the allowable grounds for judicial review under the KJRA. The party asserting error or invalidity of the agency action bears the burden of establishing the error on appeal. K.S.A. 77–621(a)(1).
Appellants base their challenge to KDHE's issuance of the solid waste facility permit on two statutory subsections of K.S.A. 77–621(c):
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
On appeal from a district court's review, an appellate court does not accord the district court's decision with any particular deference but undertakes the same statutorily limited review of the agency's action as performed by the district court as though the appeal had been made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
The Requirements ofK.A.R. 28–29–104(b)(6)(E)(ii)
Sumner County and TCCC first contend that the administrative record contains no evidence that KDHE identified and characterized the potential pathways for contaminant migration as required by K.A.R. 28–29–104(b)(6)(E)(ii). That regulation provides in pertinent part:
“(b) Hydrogeologic site investigations.
“(1) The owner or operator of a proposed MSWLF [municipal solid waste landfills] unit shall conduct a hydrogeologic investigation to develop information for the following purposes:
(A) providing information to determine an appropriate design for the unit; and
(B) providing information to establish a groundwater monitoring system.
....
“(6) The phase II hydrogeologic investigation shall consist of the following items.
....
(E) The owner or operator shall evaluate the data gathered during the phase I and phase II investigations and prepare a report for submittal to the department that contains the following information:
....
(ii) characterization of potential pathways for contaminant migration.”
WCKS's phase II hydrogeologic report included a characterization of the potential for contaminant migration. Appellants apparently contend this characterization was insufficient because it did not account for migration through drill holes and bore holes existing on the proposed landfill site. The record contradicts this contention.
According to the records provided with the hydrogeologic report, the bore holes existed outside the boundaries of the proposed landfill. Three decommissioned oil wells were noted within the proposed landfill boundaries. WCKS/Golder explained the oil wells had been filled at decommission and, since the wells were connected by pipeline resting approximately 3–4 feet below the ground surface, these horizontal pipelines would be removed during excavation for the landfill liner.
The hydrogeologic report also pointed out issues concerning the seismic shotholes created during oil and gas exploration in the 1950's, WCKS/Golder specifically addressed the potential for contaminant migration as a result of these shotholes, stating: “Based on the results of water level monitoring, hydraulic testing, and vertical hydraulic gradient evaluations at the site, downward migration of groundwater through the bedrock hydrostatigraphic unit is very limited, despite potential localized effects related to seismic activities performed in the site vicinity in 1957.” As an additional precaution, WCKS suggested that any survey holes discovered during excavation would be overdrilled and grouted. This suggestion then became part of the construction quality assurance (CQA) plan approved by KDHE.
Appellants contend the mitigating of potential sources of contaminant migration after construction has begun does not comport with the requirements of K.A.R. 28–29–104(b)(6)(E)(ii). However, they do not propose a method by which WCKS/Golder Associates could accurately ascertain the location of any existing shotholes absent excavation on the site. The hydrogeologic study performed by WCKS/Golder indicated that the water movement through the bedrock and, therefore, the potential for contaminant migration, was minimal. KDHE required a full report regarding shotholes and other conduits for contamination after excavation but prior to construction of the landfill liner: i.e., “Abandonment of any seismic boreholes or other historic boreholes will be documented as part of the CQA report for subgrade acceptance.” This KDHE requirement for identifying and correcting existing holes in the proposed landfill site is reasonable and thorough. Any preexcavation study of the proposed site carries the potential for missing an actual borehole or shothole. WCKS identified the potential pathways for contaminant migration based upon the information available preexcavation. Then, the construction CQA to identify and document actual existing holes on the site furthers the goal of K.A.R. 28–29–104(b)(6)(E)(ii).
The administrative record on appeal demonstrates that KDHE did not ignore or otherwise violate the requirements of K.A.R. 28–29–104(b)(6)(E)(ii).
The Space Between the Bottom of the Landfill and the Highest Projected Water Table
Appellants next contend KDHE acted arbitrarily and capriciously in ignoring its own policy requiring a minimum separation between the landfill liner and groundwater. As a preliminary matter, WCKS contends we lack jurisdiction to consider this issue because appellants did not raise it in their petition for judicial review.
The KJRA's pleading requirements contained in K.S.A. 77–614(b) are jurisdictional, and the failure to comply with the requirements precludes a litigant's statutory right to appeal. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 397, 204 P.3d 562 (2009). K.S.A. 77–614(b)(6) requires the petition for judicial review to state the petitioner's reasons for believing that relief should be granted. “In other words, a petition for judicial review must set forth the specific issues that will be raised before the district court.” Kingsley, 288 Kan. at 405. A petitioner strictly complies with the pleading requirement of K.S.A. 77–614(b)(6) when the reasons for relief as stated in the petition for judicial review provide the court and the agency with notice of the issues to be raised. Kingsley, 288 Kan. at 406.
The second amended petition for judicial review contains no specific mention of a KDHE policy requiring minimum separation between the landfill and groundwater. Nowhere does it allege a defect in the proposed landfill design attributable to minimum separation between the bottom of the landfill and the water table.
In their reply brief, appellants contend the petition for judicial review adequately complied with K.S.A. 77–614(b), and the district court so ruled.
As to the district court so ruling, it properly determined it possessed subject matter jurisdiction over the petition for judicial review. But it did so in response to WCKS' broad motion to strike for lack of subject matter jurisdiction. It appears appellants specifically pled some of its objections to the landfill as required by K.S.A 77–614(b), which then provided the court with subject matter jurisdiction over those issues. However, the fact remains the court was not asked to specifically consider—and as far as we can tell did not consider—whether this separation issue was properly pled and properly presented to the court for adjudication.
As to whether appellants complied with K.S.A. 77–614(b) in pleading this issue, they argue the second amended petition placed KDHE and WCKS on notice of the 5–foot separation issue because the petition referenced Terrane's report, which faulted the landfill permit application for failing to establish adequate separation between the landfill and projected groundwater tables. However, this argument is no more persuasive than the argument rejected in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 786, 148 P.3d 538 (2006) (“ ‘Probable cause to arrest,’ even if taken as the reviewable issue of whether there were ‘reasonable grounds' to believe the licensee was DUI, is far too expansive of an issue, as it could include any number of arguments. [Citation omitted.] Bruch's broad statement concerning probable cause does not provide the Department or the district court with any focus on the agency error to be addressed at trial.”).
Likewise here, the report compiled by Terrane included allegations of multiple defects in the landfill permit application, including many specifically alleged in the petition for judicial review. Kingsley requires the petition itself to provide a specific notice to an agency when a person or entity seeks judicial review of one of the agency's actions. Here, the reference to the Terrane report lacked that specifity required to give KDHE notice that it was faulting the agency for not enforcing one of its policies regarding separation of the landfill from the water table.
The district court properly retained subject matter jurisdiction over the petition for judicial review because appellants raised multiple issues with sufficient specificity to satisfy the requirements of K.S.A. 77–614(b)(6). Nevertheless, Kingsley clearly would have called for dismissal of the case if appellants had pursued only the 5–foot separation issue since it was not adequately pled. That being so, it would be illogical for a court to exercise judicial review over the issue simply because it possessed subject matter jurisdiction over other issues that had been stated with specificity. The district court lacked subject matter jurisdiction over the separation issue because it was not stated with specificity in the petition for judicial review. Since the district court lacked jurisdiction, we also lack jurisdiction over the issue. See Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009).
Even if the district court and this court would have jurisdiction to address the separation issue, it would not provide appellants a basis for invalidating the permit. Appellants argue KDHE ignored its own policy requiring a minimum separation of 5 feet between the bottom of the landfill and the highest projected watertable. The policy appellants refer to is KDHE, Bureau of Waste Management Policy 02–02. It provides in pertinent part:
“New solid waste disposal units must have a minimum vertical separation of 5 feet from the lowest point of a solid waste disposal area ( e.g., bottom of the base of the sump) to the highest predicted groundwater elevation in the uppermost aquifer underlying the disposal area. The minimum vertical separation must be provided by naturally occurring, in-situ soil or geologic material, or approved alternative material.”
The parties apparently do not dispute that the majority of the proposed landfill meets this separation requirement. The dispute focuses on the northwest (panhandle) corner of the proposed landfill area (also referred to as Area D). There, the overburden material, (clay, silt, sand, or gravel overlaying the bedrock) would not be completely removed. This overburden material can retain water in wetter periods. The overburden apparently thickens west of the proposed landfill area and eventually forms an aquifer.
KDHE has always acknowledged that construction in this area without removing the overburden material might lead to a minimum separation of only 2–4 feet rather than the recommended 5–foot separation. But, because this area was designated for future landfill construction, KDHE granted the permit but imposed a special condition that WCKS demonstrate compliance with the vertical separation requirements if and when it decided to develop Area D. The condition reads:
“Such demonstration may include one or more of the following measures, but shall not necessarily be limited to the following measures: (a) long-term monitoring showing that the water table in the overburden has been permanently lowered as a result of excavation and dewatering; (b) amended plans specifying higher base elevations to provide adequate vertical separation between the landfill and the highest water table elevations on record; and/or (c) amended plans specifying a system for intercepting and draining groundwater from the overburden to permanently lower the water table in the overburden within the limits of Area D. The Permittee shall not construct or operate Area D unless or until the KDHE–BWM authorizes those actions.” (Emphasis added.)
Appellants argue that K.S.A. 65–3407(b) mandates the entire landfill area must comport with applicable rules and regulations before approval of the permit and KDHE exceeded its authority by segmenting its approval of the landfill. They cite Ross v. Federal Highway Admin., 162 F.3d 1046, 1052–53 (10th Cir.1998), in support for this proposition. However, Ross is distinguishable, and their argument places form over substance.
Before addressing Ross, we note the practicality of KDHE's imposition of this special condition on the permit. By doing so, KDHE is enforcing the minimum separation policy in a practical sense. Whether KDHE required WCKS/Golder to demonstrate a method for achieving the minimum separation in the panhandle area before approving a permit or required WCKS/Golder to demonstrate a method of achieving such separation before permitting construction of the landfill in that area is merely a difference without a distinction. Certainly, KDHE could have simply denied the proposed construction in Area D and required WCKS/Golder to amend its permit application to eliminate the proposed future construction of the panhandle area. WCKS would then have to seek another permit to expand its landfill into the panhandle area at some later date if it wished to develop Area D. Practically speaking, however, KDHE's use of a special condition is no different except that it conserves agency resources. KDHE reviewed volumes of material submitted with this landfill application and volumes of material in opposition. If KDHE chose to require WCKS to amend its permit application now to exclude the panhandle area and WCKS later decided to seek a permit to expand into that area, KDHE would likely have to revisit much of the same information as it reviewed in this administrative process.
Unlike Ross, KDHE is not authorizing WCKS to avoid the policy regarding minimum separation by segmenting its application. Rather, KDHE is enforcing its policy by requiring WCKS to demonstrate a method of achieving the minimum separation prior to construction in the panhandle area. This method of implementing the minimum separation requirement is not a violation of KDHE's authority, nor is it arbitrary, capricious, or unreasonable conduct. See Kansas Racing Management, Inc. v. Kansas Racing Comm'n., 244 Kan. 343, 365, 770 P.2d 423 (1989) (“[T]he arbitrary and capricious test relates to whether that particular action should have been taken or is justified, such as the reasonableness of the [agency's] exercise of discretion in reaching the determination, or whether the agency's action was without foundation in fact.”).
KDHE's grant of the landfill permit was based on a determination of facts that is supported by substantial evidence and was not arbitrary, capricious, or unreasonable.
Affirmed.