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ABC Holdings, Inc. v. Kittitas County

Court of Appeals of Washington, Division 3

April 23, 2015

ABC Holdings, Inc., et al. , Appellants ,
v.
Kittitas County , Respondent

Oral Argument: January 29, 2015.

Page 1223

[Copyrighted Material Omitted]

Page 1224

Appeal from Kittitas Superior Court. Docket No: 11-2-00234-1. Judge signing: Honorable Frances Paddack Chmelewski. Judgment or order under review. Date filed: 03/12/2012.

Leslie A. Powers, for appellants.

Gregory L. Zempel, Prosecuting Attorney, and Neil A. Caulkins, Deputy ; and Kenneth W. Harper (of Menke Jackson Beyer LLP ), for respondent.

Authored by Stephen M. Brown. Concurring: George B. Fearing, Kevin M. Korsmo.

OPINION

Brown, A.C.J.

Page 1225

[187 Wn.App. 278] ¶ 1 Today, we decide three consolidated appeals. First, Chem-Safe Environmental Inc. and its parent company, ABC Holdings Inc. (collectively CSE), appeal the superior court's public nuisance order, affirming the Kittitas County hearing examiner's decision upholding the county's notice of violation and abatement (NOVA) for handling moderate risk waste (MRW) without proper county permits. Second, CSE appeals the court's contempt order based on its failure to adhere to the NOVA. Third, CSE appeals the court's denial of its motion to vacate the NOVA. CSE contends (1) the NOVA was factually unsupported, [187 Wn.App. 279] beyond the county's authority, and procedurally defective, (2) the court erred in finding contempt, and (3) the court erred in denying its reconsideration request in light of newly discovered evidence. We conclude the contempt appeal is moot because CSE has since purged the contempt without sanctions, and we reject CSE's remaining contentions. Accordingly, we affirm.

FACTS

¶ 2 The facts are drawn primarily from the hearing examiner's unchallenged findings of fact. From July 10, 2008 through January 27, 2011, CSE collected MRW materials on its property before transporting the waste to disposal facilities. CSE claimed it was in the process of obtaining a permit. On January 27, 2011, a county health department inspector, James Rivard, visited CSE's property. He had inspected the site in the past and had warned CSE it needed a permit. Mr. Rivard found MRW material on the property, which Mr. Rivard believed was dry cleaning solvent (dichloromethyl ether), labeled P016--a hazardous waste number designated by 40 C.F.R. § 261.33. CSE did not have a permit from the county's health department to collect MRW or operate a MRW facility on the property, violating Kittitas County Code (KCC) Ordinance 1999-01 and chapter 173-350 WAC.

¶ 3 The county issued a NOVA to CSE, including a description of the alleged violation, notice of a $500 fine payable within 30 days from the end of the appeal period, a description of abatement action necessary, a statement that CSE could request an administrative hearing, and notice the county may assess costs of abatement against CSE. The NOVA ordered CSE to " test the concrete floor and ground at the facility site for contamination. All test methods and sample locations must be pre-approved by [the county] in consultation with [the Department

Page 1226

of Ecology (DOE)] prior to any testing. Testing cannot be performed by [CSE], but [187 Wn.App. 280] must be done by a neutral 3rd party who is approved by [the county] in consultation with DOE." Clerk's Papers (CP) at 536. Lastly, the county concluded CSE's actions amounted to a public nuisance.

¶ 4 CSE requested an administrative hearing but did not dispute it had been operating during Mr. Rivard's investigation without a required permit. CSE, however, argued it was in the process of applying for the proper permit and asserted the county had approved its operation during the application period. The county pointed out Mr. Rivard's declaration submitted to the hearing examiner made reference to a drum observed at the CSE facility that Mr. Rivard initially believed contained P016. The county explained to the hearing examiner Mr. Rivard's understanding of the label was mistaken and that it actually listed " D016." The county informed the hearing examiner that D016 was listed as a dangerous waste per WAC 173-303-090(8)(c) and 40 C.F.R. § 261.21.

¶ 5 The hearing examiner found the county had allowed CSE to operate its waste facility during the application process but the county was not estopped to revoke that consent to protect the public health, safety, and welfare. The examiner found that the county lacked authority to waive the permitting requirements, and that CSE " does not dispute that they operated without the required license/permit." CP at 8. The examiner affirmed the NOVA and denied reconsideration. By this time, CSE had ceased operating at its property.

¶ 6 In March 2012, CSE appealed to the superior court; the superior court affirmed, filing a memorandum decision.

¶ 7 In April 2012, CSE appealed here and requested the superior court stay NOVA enforcement until this appeal was decided. CSE mainly wanted to stay the required testing of the facilities' floor and ground below. In June 2012, the superior court denied CSE's stay request, finding it did not have jurisdiction because a notice of appeal had been filed. This court directed the parties to RAP 7.2 and [187 Wn.App. 281] RAP 8.1 regarding postjudgment motions and the right to stay enforcement of trial court decisions.

¶ 8 Based on this court's directive, CSE moved for reconsideration of the June 2012 order denying its stay request, based on CR 59(a)(8) (error of law) or, alternatively, under CR 60(b)(3) (newly discovered evidence based on Mr. Rivard's later declaration regarding the drum's labeling). In October 2012, the superior court denied CSE's stay request but did not address its CR 60 motion. In November 2012, CSE unsuccessfully requested reconsideration of the court's denial of its stay motion.

¶ 9 In April 2013, the county requested a show cause hearing on why CSE should not be found in contempt for failing to adhere to the NOVA. In May 2013, the court found CSE in contempt, stating, " The contempt may be purged if appellants both formulate and execute a satisfactory sampling/testing plan." CP at 885. CSE appealed the court's contempt order to this court. In December 2013, the ...


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