Petition for Writ of Certiorari — MPM Contractors, Inc. v. Department of Health & Environment of Kansas
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JUL, 23 WSO
obo E_SPANIOL, Beet
No.
CLERK
In The
Supreme Court of the United States
October Term, 1990
y
—
MPM CONTRACTORS, INC.,
Petitioner,
DEPARTMENT OF HEALTH AND ENVIRONMENT
OF THE STATE OF KANSAS,
Respondent.
>
Petition For Writ Of Certiorari To The
Court Of Appeals Of The State Of Kansas
»
7
PETITION FOR CERTIORARI
»
_
JOHN S. SEEBER
Counsel of record
ApDAms, JONES, ROBINSON AND
MALongE, CHARTERED
155 North Market, Suite 600
Post Office Box 1034
Wichita, KS 67201-1034
(316) 265-8591
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Whether due process of law hearings under the Fifth
and Fourteenth Amendments to the United States Consti-
tution were denied where a state agency head without
any notice or hearing signed orders fining as asbestos
removal contractor for alleged state regulatory violations,
then aliowed appeals hearings on the orders before an
employee of the agency head, and the agency head then
signs further orders for the fines solely based upon a
review of the appeal hearing by the agency head’s gen-
eral counsel.
il
TABLE OF CONTENTS
Page
Question i ee ere re er ee i
Tame of Autheees «oS oii ee eee iii
Reports of Oplnhene. «5. iicssoak eee 1
PTR iso nn i ieee 2
matutery Prewleht <..2600is555 00s eee 2
Constitutional Provisions .....................00eee 2
Statement of the Case ..«ik6035.40c as cae eee 3
Reasons And Arguments For Allowance Of The Writ 7
Pee OR Oe 11
Appendian A... 6. .c0ssin ene eee App. 1
Appendia B .... osicsvicsan dese eee App. 8
Appendix C ...6 6.6542 csxnqekeaeeeeeeae App. 9
Appendix D.... ....:icd< ons see ee App. 14
Appendia ©... 2. .5.1d.05 500 App. 16
Appendix F .... 0. 6.605 sina ee App. 20
Appendix G. .......055s.s000 nae App. 34
Appendix H.....5..soi sea uk eae ee App. 39
Appendix 1... 2. ....0sce0cenk pee ee App. 41
Reppendin J... .... i+ knv es eee App. 44
Appendix K........ss.0s200eeee nee App. 53
iii
TABLE OF AUTHORITIES
CASES
Armstrong v. Manzo, 380 U.S. 545, 14 L. Ed. 2d 62,
i onc kebpieangetevesssesnecnceee 8
CONSTITUTIONAL PROVISIONS
EO as sw ed essen » ae ee
U.S. Const. amend. XIV, § 1
STATUTES
A 2
K.S.A. 77-526
No.
a
_
In The
Supreme Court of the United States
October Term, 1990
y%
. 4
MPM CONTRACTORS, INC.,*
Petitioner,
DEPARTMENT OF HEALTH AND ENVIRONMENT
OF THE STATE OF KANSAS,
Respondent.
>
Petition For Writ Of Certiorari To The
Court Of Appeals Of The State Of Kansas
y%
_
REPORTS OF OPINIONS
There are no official or unofficial reports of opinions
delivered in the case by other courts or administrative
agencies.
>
* There is no parent or subsidiary company of MPM Contrac-
tors, Inc.
JURISDICTION
The date of the entry of the judgment or decree
sought to be reviewed was March 9, 1990 in the Court of
Appeals of the State of Kansas, reprinted as Appendix A.
Petition For Review thereof was denied by the Supreme
Court of the State of Kansas April 24, 1990, by order
reprinted as Appendix B.
+
STATUTORY PROVISION
The statutory provision believed to confer jurisdic-
tion on this court to review the judgment or decree in a
question by writ of certiorari is 28 U.S.C. § 1257.
—+
CONSTITUTIONAL PROVISIONS
The constitutional provisions involved under the
Constitution of the United States of America are:
AMENDMENT [V]
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
to the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself,
nor be deprived of life, liberty, or property,
without due process of law; nor shall private
3
property be taken for public use, without just
compensation.
U.S. Const. amend. V
AMENDMENT [XIVI, Section 1
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1
+
STATEMENT OF THE CASE
This case involves fines of $2,000, $3,000, and $4,000,
assessed against petitioner, MPM Contractors, Inc.
(“MPM” herein), by Stanley C. Grant, Ph.D., Secretary of
the Kansas Department of Health and Environment
(“KDHE” herein) in three cases under the Kansas
Asbestos Control Act, which cases were consolidated on
judicial appeal. All material documents and procedures
in the cases are identical and accordingly only documents
concerning one of the cases will be referred to.
Each fine case was started by an “ORDER ASSESS-
ING A CIVIL PENALTY” signed by Stanley C. Grant, and
a copy of one order is reprinted as Appendix C. Stanley
C. Grant, Secretary of the Kansas Department of Health
and Environment, is the agency head of the Kansas
Department of Health and Environment. As the agency
head, under K.S.A. 77-526, it was a final order as ren-
dered by the agency head.
The “ORDER ASSESSING A CIVIL PENALTY” stated
the Secretary had reviewed the files and made the find-
ings of fact and law therein; found violations of certain
asbestos control regulations against MPM; assessed the
fires in the three separate amounts; and had a separate
section entitled “Appeal Right” that if MPM thought the
order unreasonable, MPM could appeal the order by stat-
ing specifically in what way the order was unlawful or
unreasonable in a written notice to the Secretary within
15 days, with the failure to submit an appeal waiving a
right to a hearing and the order would become final, and
reflecting if an appeal request was made, Jack Alexander
of the Kansas Department of Health and Environment
was appointed presiding officer. Jack Alexander is an
employee of the KDHE. It was stipulated the Secretary
provided no notice or opportunity for hearing to MPM
prior to signing and issuing such orders and did not
personally review the relevant agency administrative files
and records on which it was based before signing and
issuing the same (Appendix D). Agency employees pre-
pared such orders and Secretary Grant signed them when
placed in front of him without any presentation being
made to him.
MPM “appealed” the “ORDER ASSESSING A CIVIL
PENALTY.”
Stanley C. Grant, KDHE agency head, then sent a
“NOTICE OF HEARING” to MPM (Appendix E herein)
incorporating the previous “ORDER ASSESSING A CIVIL
PENALTY” and offering an opportunity for MPM to be
heard, appointed Jack Alexander of KDHE as hearing
officer; stated MPM would have an opportunity to pre-
sent evidence “as to why the civil penalty should not be
imposed” (Appendix E at App. 17); stated the issues in
the administrative hearing “is whether the violations con-
tained in the attached Order Assessing a Civil Penalty are
correctly stated facts that warrant the assessment”
(Appendix E at App. 18) of the penalty; if the company
didn’t attend or participate, the order may issue assessing
the penalty.
At the hearing held on the $3,000 fine, the hearing
officer, Jack Alexander, stated “I am here to hold a hear-
ing to allow you gentlemen to convince me that the
information from this side of the table is in error. It’s the
only issue in front of me, do we understand that?”
After the appeals hearings, Jack Alexander signed a
“REPORT OF HEARING OFFICER” (Appendix F herein)
stating the fine imposed “ .. . is hereby sustained.”
(Appendix F at App. 32).
The “REPORT OF HEARING OFFICER” was
appealed to Stanley C. Grant, Ph.D., Secretary of KDHE
by MPM, with oral argument requested. Oral argument
was denied by the Secretary and the Secretary entered a
“FINAL ORDER” (Appendix G herein) and an eventual
“CORRECTION OF FINAL ORDER,” (Appendix H
herein). The final order and its correction first adopted
the civil penalty of $4,000 imposed by the initial order
and then made a correction to the $3,000 in the initial
—__—_—
order. In signing and issuing the final orders and correc-
tion of final order, it was stipulated the Secretary relied
on the independent legal advice of his general counsel
who reviewed the relevant administrative files, tran-
scripts, exhibits, and records, and prepared the final
orders and correction; the Secretary did not personally
review the administrative files or records before signing
the final orders and correction of final order (Appendix D
herein).
MPM appealed the final orders to the Shawnee
County District Court in Kansas by Petitions For Judicial
Review. The Petitions For Judicial Review included that
the proceedings were null and void and deprived MPM
of life, liberty, or property without due process of law
under the Fifth and Fourteenth Amendments to the
United States Constitution (Appendix I herein).
The Shawnee County District Court in its Memoran-
dum Decision and Order which is Appendix J hereto |
reversed the fines because of the failure to hold a hearing
under the Kansas Administrative Procedures Act prior to
the “ORDER ASSESSING A CIVIL PENALTY” and found
that the procedure used was the form of an appeal from
the issuance of such orders which had assessed the penal-
ties (Appendix J at App. 45). The Shawnee County Dis-
trict Court denied the issues raised concerning the Fifth
and Fourteenth Amendments to the United States Consti-
tution which had been raised by MPM (Appendix J at
App. 46).
KDHE appealed the Shawnee County District Court
Memorandum Decision and Order to the Kansas Court of
Appeals. MPM cross-appealed from the Shawnee County,
Kansas District Court not including in its reasons for
finding in favor of MPM that the acts violated the Fifth
and Fourteenth Amendments to the Constitution of the
United States (Appendix K herein).
MPM in its Brief of Appellee and Cross-Appellant to
the Court of Appeals of the State of Kansas raised and
brief the following issue: Whether the fines deprive MPM
Contractors, Inc. of property without due process of law
under the Fifth and Fourteenth Amendments to the
United States Constitution.
The Court of Appeals of the State of Kansas in its
Opinion March 9, 1990 (Appendix A) reversed the Shaw-
nee County District Court on the issues raised on Kansas
law and reinstated the penalties, and discussed and
denied the due process of law issues raised by MPM in its
cross-appeal (Appendix A at App. 5-7). The Supreme
Court of the State of Kansas, on April 24, 1990, denied
MPM’s petition for review of said Court of Appeals opin-
ion (Appendix B at App. 8).
yx
$d
REASONS AND ARGUMENTS FOR
ALLOWANCE OF THE WRIT
The Court should allow the writ for the reason that
the Court of Appeals of the State of Kansas has decided
federal constitutional questions concerning the due pro-
cess clause of the Fifth and Fourteenth Amendments to
the United States Constitution in a way that conflicts with
the applicable decisions of this Court in that MPM was
not accorded the due process right to be heard at a
meaningful time and in a meaningful manner under the
principles set forth by this Court in Armstrong v. Manzo,
380 U.S. 545, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965).
MPM was fined by an “ORDER ASSESSING A CIVIL
PENALTY” that amounted to a final order by the agency
head of KDHE without any hearing or notice of any kind
and based on an order drafted by personnel in the agency
and simply placed in front of the Secretary for his signa-
ture. MPM was given a “appeal” right of trying to dis-
prove that order with the burden cast upon MPM rather
than have a fundamentally tair hearing at a meaningful
time and in a meaningful manner. An appeal hearing held
before an employee of the agency head who had already
issued the order is not a meaningful hearing at a mean-
ingful time; and an appeal hearing by anyone of the order
of the agency head is not a required due process hearing
under the Fifth and Fourteenth Amendments to the
United States Constitution. The Secretary’s general coun-
sel reviewed the appeals and the Secretary again signed a
final order placed in front of him without any knowledge
of the matter or-a due process hearing.
In Armstrong v. Manzo, 380 U.S. 545, 14 L. Ed. 2d 62,
85 S. Ct. 1187 (1965), the divorced mother of a child and
her second husband obtained an order without notice and
hearing from a juvenile judge in Texas that the child’s
father had not contributed for support for a period of
time that allowed the juvenile court judge to consent to
the adoption, and based thereupon a separate adoption
proceeding in a Texas district court occurred, also with-
out notice or hearing to the child’s father. The day the
adoption decree was entered, the new adoptive father
gave notice to the child’s grandfather who in turn noti-
fied the father, who immediately filed a motion to set
aside the adoption and for a new trial. The district court
judge who had granted the adoption had a hearing on the
motion for a new trial and heard evidence only as to the
support contributions by the father and denied a new
trial, which decision was affirmed by the Supreme Court
of Texas. This Court reversed the case because of the lack
of due process of law and in doing so this Court indicated
at 380 U.S. p. 551 that with a timely notice that the
Constitution required, the child’s mother and her second
husband would have had the burden of proving their
case against whatever defenses the petitioner might have
interposed and stated:
“Instead, the petitioner was faced on his first
appearance in the courtroom with the task of
overcoming an adverse decree entered by one
judge, based upon a finding of nonsupport
made by another judge. As the record shows,
there was placed upon the petitioner the burden
of affirmatively showing that he had contrib-
uted to the support of his daughter to the limit
of his financial ability over the period involved.
The burdens thus placed upon the petitioner
were real, not purely theoretical. For ‘it is plain
that where the burden of proof lies may be
decisive of the outcome.’ Speiser v Randall, 357
US 513, 525, 2 L ed 2d 1460, 1472, 78 S Ct 1332.
Yet these burdens would not have been imposed
upon him had he been given timely notice in
accord with the Constitution.
A fundamental requirement of due process
is ‘the opportunity to be heard.’ Grannis v.
Ordean, 234 US 385, 394, 58 L ed 1363, 1369, 34S
Ct 779. It is an opportunity which must be granted
at a meaningful time and in a meaningful manner.
The trial court could have fully accorded this
right to the petitioner only by granting his
motion to set aside the decree and consider the
10
case anew. Only that would have wiped the
slate clean. Only that would have restored the
petitioner to the position he would have occu-
pied had due process of law been accorded to
him in the first place.” (Emphasis supplied.)
The instant MPM case is similar because on the
“appeal” they were faced with the task of overcoming on
appeal the order which by law was already a final order
by the agency head assessing the fines. The unlawful
burden would have been the same even if the hearing
officer had not been an employee of the Secretary because
the Secretary eventually upheld the appeal with another
order signed without hearing before him, and hence there
was never an opportunity for hearing “at a meaningful
time and in a meaningful manner” as required.
Petitioner is aware of no published statistics on the
number of similar cases in which similar procedures are
used by state agencies of the various states with respect
to asbestos control matters and fines, but at the oral
argument before the Kansas Court of Appeals, counsel
for KDHE stated that this was the way these matters were
handled all over the country based on seminars they
attended. Based upon that argument, it appears there
may be a large volume of these cases where there is no
meaningful hearing being afforded.
This is an important constitutional issue because it
goes to a basic constitutional right and an attempt to
destroy the right to a due process hearing at a meaningful
time and manner at which both sides of the playing field
are level, so to speak, and the slate is clean, by allowing
an “appeal” hearing on an order entered without any
notice or hearing.
Sd
11
CONCLUSION
For these reasons, the petition for writ of certiorari
should be granted.
Respectfully submitted,
JOHN S. SEEBER
Apvams, JONES, RoBINSON AND
MALONE, CHARTERED
155 North Market, Suite 600
Post Office Box 1034
Wichita, KS 67201-1034
(316) 265-8591
Attorneys for MPM
Contractors, Inc.
App. 1
APPENDIX A
NOT DESIGNATED FOR PUBLICATION
No. 63,714
IN THE COURT OF APPEALS OF THE STATE OF KAN-
SAS
MPM CONTRACTORS, INC.,
Appellee/Cross-Appellant,
V.
DEPT. OF HEALTH AND ENVIRONMENT
OF THE STATE OF KANSAS,
Appellant/Cress-Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; FRED S. JACK-
SON, judge. Opinion filed March 9, 1990. Affirmed in
part and reversed in part.
Yvonne C. Anderson, of Kansas Department of Health
and Environment, for appellant/cross-appellee.
John S. Seeber, of Adams, Jones, Robinson and Mal-
one, Chartered, of Wichita, for appellee/cross-appellant.
Before BRISCOE, PJ., GERNON and LEWIS, JJ.
Per Curiam: The Kansas Department of Health and
Environment (KDHE) appeals the district court’s order
which vacated penalties issued against MPM Contractors,
Inc., (MPM) in four cases. MPM cross appeals.
MPM is a licensed asbestos contractor. KDHE found
that MPM had failed to comply with regulations govern-
ing the removal of asbestos. Recommendations were sub-
mitted to the Secretary of KDHE in the form of
App. 2
documents entitled “ORDER ASSESSING A CIVIL PEN-
ALTY” for review and decision.
This appeal centers not on the substance of the find-
ings, but rather on the nature of the penalties and the
procedures leading to the decision by the Secretary.
The Secretary assessed penalties against MPM. MPM
then filed for judicial review, at which time the cases
were consolidated. The district court issued findings and
an order setting aside the orders of KDHE. KDHE
appeals.
Scope of Review
Appellate review of administrative cases is governed
by the Act for Judicial Review and Civil Enforcement of
Agency Actions, K.S.A. 77-601 et seq. The scope of review
is set out in K.S.A. 77-621, which provides that “[t]he
burden of proving the invalidity of agency action is on
the party asserting invalidity.” K.S.A. 77-621(a)(1).
The Kansas Supreme Court has stated:
“If agency action is constitutionally autho-
rized by statute, it is presumed valid on review
unless it is not supported by substantial compe-
tent evidence and is so wide of its mark as to be
outside the realm of fair debate, or is otherwise
unreasonable, arbitrary, or capricious and preju-
dices the parties.” Zinke & Trumbo, Ltd. v. Kansas
Corporation Comm’n, 242 Kan. 470, Syl. 4 1, 749
P.2d 21 (1988).
“In reviewing the district court’s judgment, this court
must first determine whether the district court observed
the requirements and restrictions placed upon it, and
App. 3
then make the same review of the administrative tribu-
nal’s action as does the district court.” Kansas Dept. of
Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d
1131 (1981).
District Court Findings
The district court found that the civil penalties
assessed by KDHE were imposed without notification
and contrary to K.S.A. 65-5314 and 77-508 and therefore
KDHE exceeded its scope of authority.
Statutes
K.S.A. 77-508 states:
“A hearing shall not be required for a deci-
sion:
“(a) To issue or not to issue a complaint,
summons or similar accusation; or
“(b) to initiate or not to initiate an investiga-
tion, prosecution or other proceeding before the
state agency, another agency or a court.”
Asbestos control law is found in Article 53 of Chapter
65 of Kansas Statutes Annotated. K.S.A. 65-5314 states in
part:
“(b) The secretary, upon a finding that a
business entity has violated any provision of
this act or any rules and regulations adopted
under this act, may impose a civil penalty
within the limits provided in this section upon
such business entity, which civil penalty shall be
in an amount to constitute an actual and sub-
stantial economic deterrent to the violation for
which the civil penalty is assessed.
App. 4
“(c) No civil penalty shall be imposed under
this section except upon the written order of the
secretary after notification and hearing, if a
hearing is requested, in accordance with the
provisions of the Kansas administrative pro-
cedure act.”
The Order
The first order, due to the unfortunate choice of
words by its author, and because of its style, appears
upon first reading to be a final determination of the
issues. It is titled, “ORDER ASSESSING A CIVIL PEN-
ALTY.” It states that the Secretary “makes the following
findings of fact and law.” Further, it states, “The Secretary
having found . . . hereby assesses.” It has a section
entitled “APPEAL RIGHT.”
Upon closer review of the order’s language, it is clear
that the order is not a final determination of the issues.
The order contains clear and unambiguous language that
if MPM does not request a hearing then “this ORDER
ASSESSING A CIVIL PENALTY will become a Final
Order.” This language, in our view, saves the order from
being a final order and requires that this matter be
reversed.
The order is within the exceptions to K.S.A. 77-508.
The effect of this order is to provide notice to the respon-
dent that KDHE has reason to conclude that violations of
the Asbestos Control Act have occurred, that the respon-
dent is responsible for the violations, that penalties will
be imposed if the order becomes a final order, and that
the order will become final unless the respondent takes
App. 5
action. K.S.A. 65-5314 clearly states that a hearing is not
required unless requested.
The Act for Judicial Review and Civil Enforcement of
Agency Actions, K.S.A. 77-601 et seq., defines a nonfinal
agency action as “the whole or a part of an agency
determination, investigation, proceeding, hearing, confer-
ence or other process that the agency intends or is rea-
sonably believed to intend to be preliminary, preparatory,
procedural or intermediate with regard to subsequent
agency action of that agency or another agency.” K.S.A.
77-607(b)(2).
We conclude that the agency did not exceed its scope
of authority in issuing the order and reverse the district
court’s finding that penalties were assessed by KDHE
without notice and contrary to the applicable statutes.
Cross-Appeal: Due Process
In its cross-appeal, MPM contends it was deprived of
a trial by a jury, and that the penalties deprive MPM of
property without due process of law. We reject both parts
of MPM’s cross-appeal.
The Sixth Amendment requires jury trials in criminal
cases. The Seventh Amendment permits jury trials “in
suits at common law, where the value in controversy shall
exceed twenty dollars.”
In Davis, Administrative Law Text § 8.11 (3d ed.
1972), Davis writes, “Administrative agencies do not
impose criminal penalties, and proceedings before agen-
cies are not suits at common law.”
App. 6
There is no constitutional guarantee which gives a
right to a jury trial to any class of case which did not exist
when the constitution was adopted. Ford v. Environmental
Protection Agency, 9 Ill. App. 3d 711, 719, 292 N.E.2d 540
(1973).
The Asbestos Control Act is a creation of statutory
law and did not exist prior to 1985. We find no merit to
MPM’s assertion on this point.
MPM further argues that the procedures used
deprived it of property without due process of law and
violated the separation of powers doctrine.
In Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 714
P.2d 975 (1986), the Kansas Supreme Court stated, “The
constitutional guarantee of procedural due process has
always been understood to embody a presumptive
requirement of notice and a meaningful opportunity to be
heard . . . before the State acts finally to deprive a person
of his property.” 238 Kan. at 824. (Emphasis added).
In Ewing v. Mytinger & Casselberry, 339 U.S. 594, 94 L.
Ed. 1081, 70 S. Ct. 820, reh. denied 340 U.S. 857 (1950), the
United States Supreme Court stated, “[I]t is not a require-
ment of due process that there be judicial inquiry before
discretion can be exercised. It is sufficient, where only
property rights are concerned, that there is at some stage an
opportunity for a hearing and a judicial determination.” 339
U.S. at 599. (Emphasis added).
The specific due process arguments of MPM have
been raised, discussed, and rejected by the Kansas
Supreme Court in Pork Motel, Corp. v. Kansas Dept. of
App. 7
Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983).
The court stated:
“The legislature has by statute charged the
secretary of KDHE with specific duties to pro-
tect the health and environment of the citizens
of this state... .
“(T]he secretary has power to adopt, amend
and repeal rules and regulations . . . issue such
orders as may be necessary . . . [, and] enforce
such orders by appropriate administrative and
judicial proceedings. . . . ” 234 Kan. at 379.
The United States Supreme Court has held that the
combination of investigating and judging functions in an
agency does not violate due process. Withrow v. Larkin,
421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975).
The legislature has the power, without question, to
delegate such a dual role to an agency. In re Larsen, 17 N.J.
Super. 564, 86 A.2d 430 (1952).
The only other issue to be noted is the contention
that a KDHE employee presided at the administrative
hearings, depriving MPM of an impartial hearing officer.
MPM waived this issue by failing to file timely motions
for disqualification pursuant to K.S.A. 77-514. We note,
however, that an identical challenge in the Pork Motel case
was rejected.
We find no merit to any issue raised by MPM on
cross-appeal and affirm all issues raised on cross-appeal.
App. 8
APPENDIX B
IN THE SUPREME COURT OF THE
STATE OF KANSAS
MPM CONTRACTORS, INC. )
)
V. )
DEPARTMENT OF HEALTH AND) No. 89-63714-A
ENVIRONMENT OF THE STATE _)
OF KANSAS )
)
You are hereby notified of the following action taken in
the above entitled case:
PETITION FOR REVIEW
DENIED
Yours very truly,
Date April 24, 1990 Lewis oe CARTER
Clerk, Supreme Court
App. 9
APPENDIX C
BEFORE THE KANSAS DEPARTMENT
OF HEALTH AND ENVIRONMENT
In the Matter of Violation of Asbestos
Controi Regulations by MPM Contractors,
Incorporated, its Successors or Assigns,
215 South Pattie, Wichita, Kansas 67201 Case No. 87-E-83
ORDER ASSESSING A CIVIL PENALTY
The Secretary of Health and Environment (Depart-
ment) after reviewing the administrative files in this mat-
ter and being fully and duly advised makes the following
findings of fact and law:
‘.
MPM Contractors, Incorporated (Firm) notified the
Department on June 29, 1987, that the Firm would be
engaged in an asbestos abatement project at Unified
School District Number 328, Quivira Heights Grade
School, Holyrood, Kansas. This asbestos abatement
project was originally to commence on July 18, 1987;
however, due to delays was not started until late July.
The notification listed the work practices for this
project to be the procedures specified in K.A.R.
28-50-9(a) and K.A.R. 28-50-9(c) Work Practices for
Asbestos Removal Projects in Areas to be Reoccupied.
On August 21, 1987, Mr. Russell Brichacek of the
Department conducted a compliance inspection at
Quivira Heights Grade School. The Department rep-
resentative contacted Mr. Kenneth Parks, Principal,
and was advised that the contractor had just com-
pleted the project. The Department representative
then inspected the school and observed the following
conditions:
a. In the Boys’ Locker Room, debris was observed
on the top of the shorter set of lockers. A sample
of the debris was collected (Sample ET 87-586)
and the area photographed (Quivira Heights
App. 10
Grade School photograph # 1). Subsequent anal-
ysis in the Department’s laboratory showed the
debris contained 35% chrysotile asbestos. The
work practices to be used in this area were to be
performed-under the provision of K.A.R.
28-50-9(c).
b. Also in the Boys’ Locker Room, a residue mate-
rial was observed on the pipe at the wall entry
into the shower area. A sample of the material
was collected (Sample ET 87-587) and a photo-
graph taken (Quivira Heights Grade School pho-
tograph # 2). The laboratory analysis indicated
the material contained 50% chrysoltile asbestos.
The work practices that were to be used in this
area were identical to those as described in para-
graph 2a. of this Order.
c. In the boiler room, debris was observed on the
pressure gauge panel. A sample of this material
was collected (Sample ET 87-588) and the area
photographed (Quivira Heights Grade School
photograph # 3). The laboratory analysis indi-
cated the material contained 15% chrysotile and
30% amosite asbestos. The work practices to be
used in this area were to be performed under the
provisions of K.A.R. 28-50-9(a).
Subsection (c)(4) of K.A.R. 28-50-9 specifically
requires that while using glove bags, airtight seals
shall be continuously maintained until the pipe sur-
face that is enclosed within the glove bag has been
cleaned free of all visible residue. The findings sum-
marized in paragraph 2(b) of this Order indicate that
the pipe located in the Boys’ Locker Room was not
cleaned free of all visible asbestos residue as required
by K.A.R. 28-50-9(c)(4).
Subsection (c)(7) of K.A.R. 28-50-9 specifically
requires that at the completion of the project, the
work area shall be free of all visible asbestos contain-
ing debris, including accumulations that existed prior
to the start of the project. Findings in paragraph 2(a)
App. 11
of this Order indicate that the work area in the Boys’
Locker Room was not cleaned free of all visible
asbestos containing debris as required by K.A.R.
28-50-9(c)(7).
5. Subsection (a)(9) of K.A.R. 28-50-9 specifically
requires that after the plastic sheeting has been
removed, all previously covered surfaces in the work
area shall be cleaned free of all visible debris. Find-
ings in paragraph 2(c) of this Order indicate that the
work area in the boiler room was not cleaned free of
all visible asbestos containing debris as required by
K.A.R. 28-50-9(a)(9).
6. In consideration of the aforementioned facts, the
Department finds that on August 21, 1987, MPM Con-
tractors, Incorporated violated certain requirements
of K.A.R. 28-50-9(c)(4) in that the pipe in the Boys’
Locker Room had not been cleaned free of visible
residue while within the glove bag; K.A.R.
28-50-9(c)(7) in that the Boys’ Locker Room, where
glove bags had been utilized, had not been cleaned
free of all visible asbestos containing debris; and
K.A.R. 28-50-9(a)(9) in that the surfaces in the boiler
room had not been cleaned free of all visible debris.
7. The Secretary of Health and Environment finds that
MPM Contractors, Incorporated has violated K.A.R.
28-50-9, subsection (c)(4), (c)(7), and (a)(9).
8. In accordance with the provisions of K.S.A. 65-5314,
any business entity which violates any provisions of
this act or any rules or regulations adopted thereof is
subject to a fine not to exceed $5,000 for each viola-
tion. Each day the violation continues shall constitute
a separate offense.
ORDER
The Secretary having found that MPM Contractors,
Incorporated has violated K.A.R. 28-50-9(c)(4), (c)(7) and
(a)(9), hereby assesses MPM Contractors, Incorporated a
App. 12
fine of $3,000. Such fine shall be made payable in the
form of a check or money order, to the Kansas Depart-
ment of Health and Environment, and sent to the
Asbestos Control Program, Kansas Department of Health
and Environment, Topeka, Kansas 66620-7430.
APPEAL RIGHT
If MPM Contractors, Incorporated is of the opinion
that this Order is unlawful or unreasonable, it may, in
accordance with the Kansas Administrative Procedures
Act, appeal this Order by stating specifically in what way
this Order is unlawful or unreasonable and sending its
Notice of Appeal and request for a hearing to the Secre-
tary of Health and Environment, Forbes Field, Building
740, Topeka, Kansas 66620. Said Notice must be made
within 15 days from the date MPM Contractors, Incorpo-
rated receives this Order. Failure to subm.t a timely
request will result in a waiver of the Contractor’s right to
a hearing and this ORDER ASSESSING A CIVIL PEN-
ALTY will become a Final Order assessing the civil pen-
alty of $3,000.00.
If a timely request for a hearing is made, Jack Alex-
ander, Kansas Department of Health and Environment,
Forbes Field, Building 740, Topeka, Kansas 66620, (913)
296-5513 is hereby appointed presiding officer to conduct
such adjudicative proceedings.
Dated this 30th day of October, 1987.
/s/ Stanley C. Grant, Ph.D.,
Stanley C. Grant, Ph.D.,
Secretary
Kansas Department of Health
and Environment
App. 13
CERTIFICATE OF MAILING
The undersigned hereby certifies that she placed in
the mail a copy of the above and foregoing order on the
2nd day of November, 1987, addressed to Mary McGill,
President, MPM Contractors, Incorporated, 215 South
Pattie, Wichita, Kansas 67201 by certified mail, return
receipt requested, postage prepaid in the U.S. Mail.
/s/ Wilma Stadler
Staff Member
P 659 740 861
Certified Mail Number
App. 14
APPENDIX D
IN THE DISTRICT COURT OF SHAWNEE COUNTY
DIVISION 2
MPM CONTRACTORS, INC.,
Pesiiias Consolidated
: Cases
V. Nos. 88 CV 1046
DEPARTMENT OF HEALTH rs i ee
AND ENVIRONMENT OF THE 88 CV 1736
STATE OF KANSAS
Respondent
STIPULATIONS
1. Stanley C. Grant, Ph.D., Secretary, Kansas Depart-
ment of Health and Environment, signed three docu-
ments entitled “ORDER ASSESSING A CIVIL
PENALTY”, dated October 30, 1987 in 88 CV 1046, dated
October 13, 1987 in 88 CV 1238, and dated October 30,
1987 in 88 CV 1470 respectively.
2. The Secretary provided no notice or opportunity
for hearing to Petitioner prior to signing and issuing the
above referenced documents.
3. The Secretary did not personally review the rele-
vant agency administrative files and records upon which
the above referenced documents were based prior to sign-
ing and issuing these documents.
4. In each case, the Secretary issued a Final Order
dated May 27, 1988 in 88 CV 1046, June 30, 1987 in 88 CV
1238 and August 8, 1988 in 88 CV 1470 and signed a
Correction of Final Order on October 6, 1988 concerning
88 CV 1470, which is Case 88 CV 1736.
App. 15
5. These consolidated cases concern three basic
appeals, 88 CV 1046, 88 CV 1238 and 88 CV 1470. The
Secretary issued a Correction of the Final Order in 88 CV
1470 after the appeai was filed. An additional appeal was
filed by Petitioner because of the correction, 88 CV 1736.
Case 88 CV 1470 and 88 CV 1736 are, therefore, appeals of
the same basic matter.
6. The Secretary relied on the independent legal
advice of his General Counsel, who reviewed the relevant
administrative files, transcripts, exhibits and records and
prepared the Final Orders and subsequent Correction of
Final Order for the Secretary. The Secretary did not per-
sonally review the administrative files or records before
signing the Final Orders and Correction of Final Order.
Adams, Jones Robinson and
Malone, Chartered
By /s/ John S. Seeber
John S. Seeber — #04785
155 N. Market, Suite 600
P. O. Box 1034
Wichita, KS 67202
(316) 265-8591 jo
Kansas Department of Health and
Environment
By /s/ Yvonne Anderson
Yvonne Anderson -
#12636
Special Assistant Attor-
ney
Landon State Office Bldg.
Suite 904
Topeka, KS 66620
(913) 296-1330
App. 16
APPENDIX E
BEFORE THE KANSAS DEPARTMENT OF HEALTH
AND ENVIRONMENT
In the Matter of Violation of
Asbestos Control Regulations by
MPM Contractors, Incorporated
Its Successors or Assigns, Case No. 87-E-83
215 South Pattie
Wichita, Kansas 67201
NOTICE OF HEARING
(Pursuant to Kansas Administrative Procedure Act)
TO: MPM Contractors, Incorporated
215 Pattie
Wichita, Kansas 67211
Yvonne Anderson, Attorney
Kansas Department of Health and Environment
Suite 904, Landon State Office Building
Topeka, Kansas 66620-0001
An Order Assessing a Civil Penalty against the
above-captioned company was issued by Stanley C.
Grant, Ph.D., Secretary, Kansas Department of Health and
Environment on October 30, 1987 Said Order was based
on violations of K.A.R. 28-50-9 subsections (c)(7), and
(a)(9) as indicated by a copy of the Order Assessing a
Civil Penalty, which is attached hereto, marked Exhibit
“A”, and by reference made a part hereof.
Before a final decision is made regarding the assess-
ment of a $3,000.00 civil penalty, the Company is offered
an opportunity to be heard in a formal adjudicative pro-
ceeding pursuant to the Kansas Administrative Procedure
Act.
App. 17
The Company is hereby notified that:
1.
Gary
A hearing regarding this matter will be held at
10:00 a.m., on Monday, February 15, 1988, in the
Conference Room A, Building 740, Forbes Field,
Kansas Department of Health and Environment,
Topeka, Kansas. The Presiding Officer will be
Jack Alexander, Kansas Department of Health
and Environment Building 740, Forbes Field, Top-
eka, Kansas (913) 296-5513.
This proceeding is held under authority of K.S.A.
65-5314 and the Kansas Administrative Procedure
Act (K.S.A. 1985 Supp. 77-501 et seq.). Jurisdic-
tion of the Secretary of Health and Environment
is conferred by K.S.A. 65-5314.
At said hearing the Company will be given an
opportunity to be represented by legal counsel or
to personally present evidence as to why the civil
penalty should not be imposed.
The Company will have the opportunity to con-
front the State’s witnesses and to cross examine
them under oath.
No other parties have been notified of this hear-
ing.
Yvonne Anderson, Attorney, Kansas Department
of Health and Environment, Suite 904, Landon
State Office Building, Topeka, Kansas 66620, tele-
phone number (913) 296-1330, has been desig-
nated to appear as counsel for the Department.
The following persons have been designated to
be witnesses for the Department:
Miller
Russell Brichacek
Rakesh Mohan
Kansas Department of Health
and Environment
Building 740, Forbes Field
App. 18
Topeka, Kansas 66620
(913) 296-1547
8. The issues to be decided in this administrative
hearing is whether the violations contained in the
attached Order Assessing a Civil Penalty are cor-
rectly stated facts that warrant the assessment of
the $3,000.00 civil penalty.
9. Should the Company fail to attend or participate
in this hearing, the Company may be held in
default under the Administrative Procedure Act
and an Order me be issued assessing the
$3,000.00 civil penalty.
IT IS SO ORDERED.
Dated this 13th day of January, 1988.
/s/ Stanley C. Grant
Stanley C. Grant, Ph.D.
Secreta
~potony rtment of
Health pets geared
Building 740, Forbes Field
Topeka, Kansas 66620
(913) 296-1522
CERTIFICATE OF MAILING
I hereby certify that on the 13th day of January, 1988,
a true and correct copy of the above and foregoing Order
was placed in the U. S. Mail, postage prepaid certified,
returned receipt requested, and addressed as follows:
MPM Contractors, Inc.
215 Pattie
Wichita, KS 67211
App. 19
and a copy was also hand delivered to the following:
Yvonne Anderson
Attorney Kansas Department of Health and Environ-
ment
Suite 904, Landon State Office Building
Topeka, Kansas 66620
/s/ Dora L White
Staff Member
App. 20
APPENDIX F
BEFORE THE DEPARTMENT OF HEALTH
AND ENVIRONMENT STATE OF KANSAS
In the Matter of Violation of
Asbestos Control Regulations By
MPM Contractors, Incorporated
Its Successors or Assigns
215 South Pattie
Wichita, Kansas 67201
Case No.
87-E-83
ee eee ee ee
REPORT OF HEARING OFFICER
TO: Michael P. McGill, General Manager
MPM Contractors, Incorporated
215 South Pattie
Wichita, Kansas 67201
John S. Seeber, Attorney
Jones, Robinson & Malone, Chartered
Box 1034
Wichita, Kansas 67201
Dr. Stanley C. Grant, Secretary
Kansas Department of Health & Environment
Forbes Field, Bldg. 740
Topeka, Kansas 66620-0001
James A. Power, Jr., Director
Division of Environment
Kansas Department of Health & Environment
Forbes Field, Bldg. 740
Topeka, Kansas 66620-0001
Yvonne Anderson, Staff Attorney
Kansas Department of Health & Environment
Landon State Office Building
900 S.W. Jackson, Suite 904
Topeka, Kansas 66612-1290
This case went to Administrative Hearing on the 15th
day of February, 1988, at 10:00 a.m., in Conference Room
App. 21
A, Building 740, Forbes Field, Topeka, Kansas 66620, pur-
suant to notice.
The Kansas Department of Health and Environment
(KDHE) appears by Ms. Yvonne Anderson, Staff Attorney
for KDHE, Landon State Office Building, 900 S.W. Jack-
son, Suite 904, Topeka, Kansas 66620.
The Respondent appears by John S. Seeber, Attorney
at Law, with the firm of Jones, Robinson & Malone,
Chartered, Box 1034, Wichita, Kansas 67201.
Molly K. Dierking, Certified Shorthand Reporter
from the Waters Court Reporting Service, 3601 S.W. 29th
Street, Topeka, Kansas 66614, recorded the eighty-eight
(88) pages of testimony and marked fourteen (14) State
exhibits, and three (3) Appellant exhibits.
After hearing testimony, review of exhibits and tran-
script, the Hearing Officer sets forth this Summary of
Evidence, Finding of Fact, Conclusions of Law, and issues
this initial order.
SUMMARY OF EVIDENCE
The first order of business was a motion to dismiss
contained in Appellant Exhibit A offered by Attorney
Seeber.
This motion was denied at this time by the Hearing
Officer and would be accepted after completing his open-
ing statement.
The Hearing Officer’s opening statement was con-
cluded with the statement “The issues to be decided in
App. 22
this administrative hearing or whether the violations con-
tained in the administrative order assessing the civil pen-
alty are correctly stated facts that warrant the assess-
ment.”
Attorney Anderson gave her opening statements and
offered three state witnesses and marked fourteen (14)
state exhibits. The Respondent’s attorney, Mr. Seeber, had
no objections to Attorney Anderson’s opening statement
or the marking of exhibits.
Attorney Anderson stated the parties had agreed to
stipulate that facts contained in Exhibits 5, 8, and 11,
which are analytical analyses of samples collected during
the compliance inspection, are true and representative of
the evidence.
Attorney Anderson then reserved the need to recall
witness Gary Miller later in the hearing, if needed, and he
would also be available for examination by the Respon-
dent’s attorney.
Mr. Seeber was in agreement and further stated that
he too may wish to later call someone back for examina-
tion.
Attorney Anderson continued with her statement
outlining the alleged violations and stating those regula-
tious and statutes that were affected by the charges.
She named her witnesses and outlined what they
would be testifying to, then concluded by stating that the
civil penalty should be upheld.
Mr. Seeber stated he would reserve his comments
until after examination of the State witnesses. Again, he
emphasized that he would like the record to-show that
App. 23
Appellant Exhibit A was offered and received before the
Fearing commenced.
At this point, Attorney Anderson requested time to
make a comment in regard to Exhibit A.
Permission was granted. Attorney Anderson
addressed the issues and concerns raised in Appellant
Exhibit A.
Mr. Seeber requested to now put a brief statement on
the record.
Permission was granted. Attorney Seeber then
explained what he had stated in Exhibit A concerning the
illegal conduct, in his opinion, of this administrative
hearing.
The Hearing Officer explained again the issues in
front of him at this particular administrative hearing.
Attorney Anderson now called her first witness, Mr.
Gary D. Miller.
Mr. Miller after testifying to his experience and posi-
tion with KDHE, stated that one of his functions is keeper
of the department records.
Attorney Anderson further questioned Mr. Miller
concerning State Exhibits #1 and #2.
Attorney Anderson concluded her examination of
Mr. Miller with the condition of re-call later for additional
testimony.
Mr. Seeber having no cross-examination questions
concerning what Mr. Miller had testified to so far,
reserved his right to examine Mr. Miller on re-call.
App. 24
Mr. Russell H. Brichacek was the next State witness.
Attorney Anderson questioned this witness concern-
ing his job description, his job duties and experiences.
At this point, Attorney Anderson questioned Mr.
Brichacek concerning his involvement with the Quivira
Heights Elementary School project.
Mr. Brichacek had been the inspector on this project
and related his findings and actions.
Attorney Seeber began his cross-examination of Mr.
Brichacek, he questioned the witness concerning his pre-
vious testimony.
Attorney Seeber had questions of this witness relat-
ing to his actions after performing his inspection.
Attorney Seeber questioned the witness concerning
actions taken after he return to his office, meetings, and
conversations leading up to the writing of the administra-
tive order signed by Secretary Grant.
On redirect examination, Attorney Anderson had
Witness Brichacek address his responsibilities to EPA
concerning NESHAAP regulations, and his statement to
the Respondent concerning the possibility of a citation
being issued as the results of his findings during this
inspection.
Attorney Seeber under recross-examination of Mr.
Brichacek questioned the issue concerning the tunnel and
the tape that was found on the air handling unit.
Witness Gary Miller was recalled to give additional
testimony.
App. 25
As Attorney Anderson continued her direct examina-
tion of Mr. Miller, it covered his knowledge and actions
relating to the order filed in this case.
During this continued direct examination, Attorney
Seeber did object to the materiality of one of the ques-
tions. This objection was noted but the witness was per-
mitted to answer.
Attorney Seeber started his cross-examination of Mr.
Miller by requesting to review the department official
file.
Attorney Seeber requested that the administrative
file be marked as Appellant Exhibit B.
Attorney Anderson objected, and it was agreed by
Attorney Seeber that a copy of the original file could be
immediately made and entered as Appellant Exhibit B.
At this time, Attorney Anderson finished her case
and Attorney Seeber called his first witness, Mr. Mike
McGill.
Under direct examination concerning the project,
Witness McGill testified that MPM Contractors were still
working on the site, in that the firm had not completed
the reinsulation work.
Mr. McGill further testified concerning the expertise
of two of his inspectors and the architectural firm that all
performed inspections prior to the one conducted by
State personnel.
Mr. McGill further testified it was the State that men-
tioned some additional work that needed to be addressed
on this project, and that MPM accomplished the work
App. 26
which was outside of the specifications of their contract
and was not paid for the additional work.
Attorney Seeber questioned Mr. McGill concerning
the issue of the tape that was allegedly attached some-
where to the boiler unit.
Mr. McGill responded that this issue had been
resolved by his personnel.
Attorney Anderson in the cross-examination of Wit-
ness McGill questioned him concerning the date he
allegedly was at the removal site, also his interpretation
of the Kansas regulations under which the project was
being accomplished. She then question Mr. McGill con-
cerning whether the work in the tunnel had been com-
pleted prior to August 21, 1987, the day of the compliance
inspection.
After this examination, Attorney Anderson and
Attorney Seeber made their closing statements.
FINDINGS OF FACT
1. MPM, Incorporated, possesses asbestos control
license #OA103, which authorizes said company to
remove or encapsulate friable asbestos containing
materials within the State of Kansas.
2. The effective date for this license is February 10, 1987,
expiring on February 13, 1988.
3. On August 21, 1987, at the time of the alleged viola-
tion, this license was current and held by the Respon-
dent.
4. On July 1, 1987, the State received from the Respon-
dent their notification document for a proposed
10.
11.
12.
App. 27
asbestos abatement project at Quivira Heights Ele-
mentary School, Holyrood, Kansas.
In this notification document, the Respondent indi-
cated they would use KAR 28-50-9(a) and 28-50-9(c).
No waivers of work practices were requested or
granted.
The Respondent, in his notification, indicated that
work on this project would start July 18, 1987, and
estimated completion would be August 1, 1987.
On August 21, 1987, Russell L. Brichacek, Asbestos
Control Technician with Kansas Department of
Health and Environment, conducted a compliance
inspection at the Quivira Heights Elementary School,
Holyrood, Kansas.
Mr. Brichacek testified that when he arrived at the
project site, no work was in progress and school
officials indicated to the best of their knowledge,
work on the project was completed.
Other factors supporting those opinions were no visi-
ble signage or restrictive barriers in or near the proj-
ect site.
On the afternoon of August 22, 1987, Inspector
Brichacek contacted MPM, Inc. and spoke with Eric
Pollitt concerning what he observed at the project.
Mr. Pollitt informed Mr. Brichacek after the conversa-
tion that he would get a crew to the project site and
take care of it. Inspector Brichacek also informed Mr.
Pollitt that an enforcement action may, in his opinion,
follow this notification.
A former KDHE inspector, Robert Williams, did a
follow-up inspection on this project on August 27,
1987, and found other than some tape still on the air
handling unit. Everything else had been taken care of.
Mr. Brichacek took photographs and collected sam-
ples from the top of the shorter set of lockers in the
boys locker room. He did the same on a pipe near a
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
App. 28
wall entry in the shower area also in the boys locker
room.
Mr. Brichacek labeled and logged samples and deliv-
ered same to the department laboratory for analysis.
Under cross-examination by Attorney Seeber, Mr.
Brichacek testified that he had not conducted the
follow-up inspection, but that he understood the area
was free and clean when this inspection was made.
This compliance inspection conducted by Mr.
Brichacek was also a NESHAP inspection project rela-
tive to size for EPA purposes.
Mr. Brichacek was requested by Attorney Seeber to
outline his involvement after the inspection leading
up to the issuing of the administrative order.
Mr. Brichacek reported his findings to his immediate
supervisor then they met with their section chief.
Gary Miller was the drafter of the proposed order.
The proposed order and the administrative file then
were reviewed by the section chief, John Irwin, the
same information then was reviewed by Bureau Man-
ager Dave Romano.
The order then went to the KDHE legal department,
after their review and sign-off it proceeds to the
Director of the Division of Environment.
The Secretary of KDHE has the last review and makes
the final decision as to sign and issue the order.
Gary Miller, having used the entire file in preparing
the draft order, Attorney Seeber requested this file
and later it was determined that a copy of the file
would be marked as Appellant Exhibit B. One memo
was pulled from this file and entered as Appellant
Exhibit C.
While under examination by Attorney Seeber, Mike
McGill testified that three persons associated with his
firm performed inspections on this particular project.
24.
r 1
26.
27.
App. 29
Those persons by name were Max Bishop, Architect;
Scott Lodico and Greg Truby both MPM supervisors,
as well as Mike McGill, C.E.O. of MPM.
Mike McGill was the only person from this group that
had inspected the project to appear and testify at this
hearing.
By his own testimony, Mike McGill inspected the
project approximately a week after the August 21,
1987, date when the compliance inspection had been
conducted. :
Mr. Truby was given time off in August by MPM to
appear at a hearing conducted by the State of Kansas
dealing specifically with quality of work at a job site.
CONCLUSIONS OF LAW
K.S.A. 65-5314:
(a)
(b)
(c)
Any business entity which violates any provision of
this act or any rules and regulations adopted under
this act, in addition to any other penalty provided by
law, may incur a civil penalty imposed under subsec-
tion (b) in an amount not exceed $5,000 for each
violation and, in the case of a continuing violation,
every day such violation continues shall be deemed
a separate violation.
The secretary, upon a finding that a business entity
has violated any provision of this act or any rules
and regulations adopted under this act, may impose
a civil penalty within the limits provided in this
section upon such business entity, which civil pen-
alty shall be in an amount to constitute an actual and
substantial economic deterrent to the violation for
which the civil penalty is assessed.
No civil penalty shall be imposed under this section
except upon the written Order of the secretary after
notification and hearing, if a hearing is requested, in
accordance with the provisions of the Kansas admin-
istrative procedure act.
App. 30
(d) Any business entity aggrieved by an order of the
secretary made under this section may appeal such
order to the district court in the manner provided by
the act for judicial review and civil enforcement of
agency actions. An appeal to the district court or to
an appellant court shall not stay the payment of the
civil penalty. If the court sustains the appeal, the
secretary shall refund forthwith the payment of any
civil penalty to the business entity with interest at
the rate established by K.S.A. 16204, and amend-
ments thereto, from the date of payment of the pen-
alty.
(e) Any penalty recovered pursuant to the provisions of
this section shall be remitted to the state treasurer,
deposited in the state treasury and credited to the
state general fund.
K.A.R. 28-50-9. Work practices for asbestos removal proj-
ects in areas to be reoccupied. (a) An asbestos removal
project that involves the removal of friable asbestos con-
taining materials from structural items or equipment that
are located in any enclosed area which can be expected to
subsequently be occupied by persons other than mainte-
nance Or equipment operating personnel, or in an area
that is only directly assessable from these areas, shall be
conducted in accordance with the following require-
ments:
(g) After the plastic sheeting has been removed, all pre-
viously covered surfaces in the work area shall be
cleaned free of all visible debris with a HEPA filter
equipped vacuuming device or by wet cleaning
methods. Not less than 24 hours after this cleanup,
an air stream from a high speed leaf blower or
equivalent device shall be swept across all clean
surfaces for a period of not less than five minutes for
each 1000 square feet or surface area.
App. 31
K.A.R. 28-50-9(c)(4). Glove bags shall be sealed to pipe or
conduit in a manner that provides an airtight seal around
the area from which the asbestos is to be removed unless
the air space within the bag is maintained at a lower air
pressure than the air outside of the bag. Airtight seals
shall be continuously maintained until the pipe or con-
duit surface that is enclosed within the glove bag has
been cleaned free of all visible residue.
K.A.R. 28-50-9(c)(7). At the completion of the project and
before the warning signs required by subsection (c)(2) are
removed and the area can be reoccupied by persons other
than those having responsibilities directly related to the
project, the work area shall be free of all visible asbestos
containing debris, including accumulations that existed
prior to the start of the project.
ORDER
Testimony and exhibits presented as evidence at the
Administrative Hearing of Case #87-E-83 held February
15, 1988, confirmed that MPM Contractors, Inc., and/or
their agents were in fact in violation of KAR 28-50-9(a)(9),
28-50-9(c)(4) and (c)(7). These work practice violations
pursuant to KSA 65-5314, allow for the secretary to assess
a civil penalty of up to five thousand dollars ($5,000) for
each violation and every day such violation continues
shall be deemed a separate violation. Therefore, the
assessment of a civil penalty in this case is fair and
appropriate. The Hearing Officer takes notice of the Kan-
sas Department of Health and Environment Toxicology
Section guidelines for assessing administrative fines, and
that the fine of five hundred dollars ($500) per violation
App. 32
is the minimum suggested fine allowable under these
guidelines.
It is therefore ordered by the Hearing Officer that the
civil penalty in the amount of three thousand dollars
($3,000) imposed against MPM Contractors, Inc., is
hereby sustained and that this amount be paid in the
form of a cashiers check or money order to the Kansas
Department of Health and Environment Toxicology Sec-
tion Forbes Field, Topeka, Kansas 66620. The Hearing
Officer gives notice to the Respondent in this Case (87-
E-83) that this initial order shall become a final order
thirty (30) days after service unless procedures are initi-
ated for seeking reconsideration or other administrative
reliefs. The available procedures and time limitations for
seeking reconsideration or other administrative relief are
as follows:
1. A petition for review of an initial order must be filed
with the secretary of Health and Environment within
fifteen (15) days after service of the initial order. The
petition shall state its basis.
2. A party may submit to the Hearing Officer or the
secretary of Health and Environment a petition for
stay of effectiveness of an initial order or final order
until the time at which a petition for judicial review
would no longer be timely, unless otherwise provided
by statute or stated in the initial or final order.
3. Any party, within fifteen (15) days after service of a
final order, may file a petition or reconsideration with
the secretary of Health and Environment, stating the
specific grounds upon which relief is requested. The
filing of the petition is not a pre-requisite for seeking
administrative or judicial review. The Respondent has
the right to appeal to the District Court in accordance
with the act for the judicial review and civil enforce-
ment of agency actions.
App. 33
Dated this 10th day of May, 1988.
/s/ Jack Alexander
Jack Alexander, Hearing
Officer
Dept. of Health &
nvironment
Forbes Field, Bldg. 740
Topeka, Kansas 66620-7300
913/296-5513
CERTIFICATE OF MAILING
I hereby certify that on the 11th day of May, 1988, a
true and correct copy of the above foregoing document
was placed in the U. S. Mail, postage prepaid, certified,
return receipt requested, and addressed as follows:
Michael P. McGill, General Manager
MPM Contractors, Incorporated
215 South Pattie
Wichita, Kansas 67201
/s/ Jeanne A. Woodard
Staff Member
Certified Mail No. 291 210 101
jaw
App. 34
APPENDIX G
STATE OF KANSAS
KANSAS DEPARTMENT OF HEALTH
AND ENVIRONMENT
In the Matter of Violation of
Asbestos Control Regulations
by
Case No. 87-E-83
MPM Contractors, Incorporated
Its Successors or Assigns,
215 South Pattie
Wichita, KS. 67201
FINAL ORDER
The Secretary of Health and Environment, after
reviewing the above captioned file, the hearing transcript
and the appeal filed herein, and being duly advised in the
premises, finds as follows:
1.
The Respondent has challenged the administra-
tive hearing process used in the above captioned
case alleging that there was a violation of the
Respondents due process rights to Notice of
Hearing and a Hearing. The Hearing in this case
was conducted pursuant to the Kansas Adminis-
trative Procedure Act (K.S.A. 1987 Supp. 77-501
et seq.) The Asbestos Control Act (K.S.A. 65-5301
et seq.) provides for the imposition of a civil
penalty by the Secretary upon a finding that there
has been a violation of the act or the rules and
regulations promulgated pursuant to the act.
K.S.A. 65-5314(c) specifically provides as follows:
No civil penalty shall be imposed under
the section except upon the written
order of the secretary after notification
and hearing, if a hearing is requested, in
accordance with the provisions of the
App. 35
Kansas administrative procedure act.
(Emphasis supplied)
Reading the “Order Assessing a Civil Penalty” as
a whole, it is clear that a right to a hearing upon
the request of the Respondent is preserved. No
penalty was “imposed” by that order because it
was by its own terms, not final until after the
time for the appeal had expired. MPM requested
a hearing in a timely manner. MPM Contractors,
Incorporated was given full opportunity for a
hearing before an appropriate hearing officer
pursuant to the KAPA.
The order in this case was drafted so that no
further action was required by the agency if
MPM Contractors, Incorporated did not avail
itself of its rights to a hearing. The argument
advanced by MPM Contractors, Incorporated to
the affect that there was no opportunity for a
hearing is clearly meritless.
The recent Kansas case styled Pork Motel vs. the
Kansas Department of Health and Environment, 234
Kan. 374, 673 P.2d 1126 (1983), addresses MPM’s
claim that Jack Alexander is a captive employee
of KDHE and therefore an improper hearing offi-
cer. That case held that an administrative agency
may perform both investigation and adjudicatory
functions so long as the chain of command for
each such function reaches the Secretary through
different channels. There is no proof, or even an
allegation that the rule of law as set out in Pork
Motel, supra has been violated. The Kansas
Administrative Procedure Act provides for dis-
qualification of a hearing officer upon a showing
of administrative bias (K.S.A. 1987 Supp.
77-514(b)). No petition for disqualification was
ever filed and there has been no evidence pre-
sented which would tend to show that adminis-
trative bias exists in this case. MPM is therefore
App. 36
estopped from raising this defense at this late
date.
2. A review of the record shows that there is ample
evidence to support the findings of fact and con-
clusions of law of the hearing officer in this case.
3. MPM alleges that there had never been a hearing
before the Secretary and that no oral argument is
being permitted by the Secretary on MPM’s Peti-
tion for Review. The Kansas Administrative Pro-
cedures Act, at K.S.A. 77-527(e), provides that
oral arguments are discretionary with the Secre-
tary. The KAPA is designed to afford the respon-
dent its due process rights. All of its
requirements have been fully met in this case.
4. The penalty imposed in this case is well below
the statutory maximum. It is designed to provide
a “substantial economic deterrent” to the activity
engaged in by the Respondent in this case (K.S.A.
65-5314(b)). The amount of the penalty is fair and
reasonable under all the facts and circumstances.
5. The balance of the issues raised by counsel for
MPM have been reviewed and in light of the
findings hereinabove it is clear that they have no
merit.
6. The report of Hearing Officer in the above cap-
tioned case, is incorporated herein by reference
as findings of fact and conclusions of law.
IT IS THEREFORE BY THE SECRETARY ORDERED,
AND DECREED that the Initial Order is hereby
adopted and approved and that the civil penalty of
$4,000 imposed by said Initial Order is adopted by
the Secretary of Health and Environment.
The available procedures and time limitations for
seeking reconsideration or other relief are as follows:
1. Any party, within fifteen days after service of a
final order, may file a petition for reconsideration
App. 37
with the Secretary of Health and Environment,
stating the specific grounds upon which relief is
requested. The filing of the petition is not a pre-
requisite for seeking administrative or judicial
review.
2. The licensee has the right to appeal to the District
Court in accordance with the act for the judicial
review and civil enforcement of agency actions
(K.S.A. 77-601 et seq.) by filing a Petition for
Review within 30 days after service of the Order,
pursuant to K.S.A. 77-613.
IT IS SO ORDERED.
Dated this 8 day of August, 1988.
/s/ Stanley C. Grant
Stanley C. Grant, Ph.D.
Secretary of Health and
Environment
CERTIFICATE OF MAILING
I hereby certify on the 8th day of August, 1988, a true
and correct copy of this document was deposited in the
U.S. Mail and postage prepaid and addressed as follows:
Michael P. McGill
MPM Contractors, Inc.
215 S. Pattie
Wichita, Kansas 67201
John S. Seeber
Adams, Jones, Robertson and Malone Chartered
Attorney at Law
P.O. Box 1034
Wichita, Kansas 67201-1034
App. 38
and a copy was hand delivered to Yvonne Anderson,
Attorney, Kansas Department of Health and Environ-
ment, Suite 904, Landon State Office Building, Topeka,
Kansas 66612-1290.
/s/ C.A. Houghton
Staff Member
App. 39
APPENDIX H
KANSAS DEPARTMENT OF HEALTH
AND ENVIRONMENT
In the Matter of Violation of
Asbestos Control Regulations Case
by MPM Contractors, Incorporated No. 87-E-83
Its Successors or Assigns,
215 South Pattie -
Wichita, Kansas 67201
CORRECTION OF FINAL ORDER
The Secretary of Health and Environment, after
reviewing the Final Order issued in August 8, 1988, in
Case No. 87-E-83 takes notice of a typographical error
and issues this order to correct such error.
Page 3 of the Final Order reads, in pertinent part, as
follows:
“IT IS THEREFORE BY THE SECRETARY
ORDERED, AND DECREED that the Initial
Order is hereby adopted and approved and that
the civil penalty of $4,000 imposed by said Ini-
tial Order is adopted by the Secretary of Health
and Environment.” (Emphasis added.)
The paragraph is amended to read as follows:
“IT IS THEREFORE BY THE SECRETARY
ORDERED, AND DECREED that the Initial
Order is hereby adopted and approved and that
the civil penalty of $3,000 imposed by said Ini-
tial Order is adopted by the Secretary of Health
and Environment.” (Emphasis added.)
The remainder of the Final Order issued in Case No.
87-E-83 is hereby incorporated by reference and reaf-
firmed.
App. 40
IT IS SO ORDERED.
Dated this 6th day of October, 1988.
/s/ Daniel M. Faste Jr.
Stanley C. Grant, Ph.D.
Secretary
Kansas Department of
Health and Environment
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the
above and foregoing has this 6th day of October, 1988,
been served upon the following by U. S. Mail, postage
prepaid and addressed as follows:
Michael P. McGill John S. Seeber,
MPM Contractors, Inc. Attorney at Law
215 S. Pattie P. O. Box 1034
Wichita, KS 67201 Wichita, KS 67201-1034
and a copy was hand delivered to
Yvonne Anderson
Attorney
Kansas Department of Health and Environment
Suite 904, Landon State Office Building
Topeka, KS 66612-1290
/s/ Sandra McAdam
Staff Member
App. 41
APPENDIX I
IN THE DISTRICT COURT
OF SHAWNEE COUNTY, KANSAS
MPM CONTRACTORS, INC.,
Petitioner, Case
No. 88 CV 1470
bis Div 2
DEPARTMENT OF HEALTH
AND ENVIRONMENT of the
State of Kansas,
Respondent.
PETITION FOR JUDICIAL REVIEW
COMES NOW the petitioner, MPM Contractors, Inc.
(herein called “MPM7”), 215 South Pattie, Wichita, Kansas
67201 and files this Petition For Judicial Review against
the respondent, Department of Health and Environment
of the State of Kansas, whose mailing address is Forbes
Field, Building 740, Topeka, Kansas 66620.
1. The agency action at issue in this Petition For
Judicial Review is the Final Order in Case No. 87-E-73 of
Stanley C. Grant, Ph.D., Secretary of Health and Environ-
ment dated August 8, 1988, a copy of which is attached
hereto as Exhibit A and made a part hereof the same as if
set forth in full herein, whereby a fine was levied under
the Asbestos Control Act, K.S.A. 65-5301 et seq. of
$4,000.00 against petitioner and prior agency action in
this matter.
* * *
4. ...Said penalty imposed also violates the Bill of
Rights of the Constitution of the State of Kansas, Section
App. 42
10; violates the Fifth and Fourteenth Amendments to the
Constitution of the United States...
* * *
7. ... The proceedings before Jack Alexander and
Exhibit D were null and void and in violation of the
above constitutional provisions and Kansas statutes and a
deprivation of MPM’s rights thereunder and under the
Fifth and Fourteenth Amendments to the United States
Constitution by the deprivation of life, liberty or property
without due process of law and a denial of a remedy by
due course of law under Section 18 of the Bill of Rights to
the Kansas Constitution; in violation of Section 10 of the
Bill of Rights to the Kansas Constitution, and a denial of a
due process of law hearing. In its totality, all of the
procedures were a denial of a lawful procedure under the
enabling statute, K.S.A. 65-5314. A due process hearing in
violation of the above statutes and constitutional sections
was also denied because there was a predetermination by
the Secretary in Exhibit B on October 30, 1987 without a
hearing and the hearing before Jack Alexander, a subordi-
nate of the Secretary and dependent upon his position on
such Secretary, was a sham and the matter prejudged and
predetermined and set in concrete by Exhibit B before
there was any attempt at giving any kind of hearing to
MPM.
App. 43
Respectfully submitted,
ADAMS, JONES, ROBINSON
AND MALONE, CHARTERED
By /s/ John S. Seeber
John S. Seeber, Attorneys
for MPM Contractors, Inc.
CERTIFICATE OF SERVICE
A copy of the foregoing Petition For Judicial Review
was served upon the defendant and respondent by mail-
ing a copy thereof, postage prepaid, on this 6th day of
September, 1988, addressed to:
Dr. Stanley, C. Grant, Ph.D.
Secretary Of Health and Environment
agency head, Department of Health
and Environment of the State of Kansas
rorbes Field, Bldg. 740
Topeka, Kansas 66620
Ms. Yvonne Anderson
Staff Attorney
Department Of Health and
Environment of the State of Kansas
Landon State Office Building
Suite 904
Topeka, Kansas 66620
/s/ John S. Seeber
John S. Seeber
App. 44
APPENDIX J
IN THE DISTRICT COURT OF
SHAWNEE COUNTY, KANSAS
SECOND DIVISION
MPM CONTRACTORS, INC.,
ts Case
Petitioner, Nos. 88-CV-1046
ws. 88-CV-1238
88-CV-1470
DEPARTMENT OF HEALTH 88-CV-1736
AND ENVIRONMENT OF THE
STATE OF KANSAS,
Respondent.
MEMORANDUM DECISION AND ORDER
This case comes before the Court on an appeal from
decisions by the Kansas Department of Health and Envi-
ronment (KDHE) imposing civil penalties in each of the
consolidated cases for violations by MPM Contractors
(MPM) of the Asbestos Control Act, K.S.A. 65-5301, et
seq.
Each case, consolidated for the purpose of this
appeal, represents violations purportedly found in three
separate asbestos removal projects conducted by MPM.
Each project was inspected by KDHE staff members who
prepared recommendations for the imposition of civil
penalties against MPM. These were submitted to the Sec-
retary of KDHE as an “ORDER ASSESSING A CIVIL
PENALTY” for each case. These were subsequently
signed by Stanley C. Grant, Ph.D., Secretary of KDHE.
The “ORDERS” assessed penalties of $2,000 (88-CV-1046),
App. 45
$4,000 (88-CV-1238) and $3,000 (88-CV-1470). The civil
penalties are authorized by K.S.A. 65-5314.
Each Order provided for an appeal and hearing, if
requested by MPM, before the penalties became final.
MPM requested and was granted a hearing in each of the
cases. The Hearing Officer, Jack Alexander, a KDHE
employee, upheld the imposition of the civil penalties in
each case..-MPM appeals on several grounds. First, it
contends that the civil penalties are unconstitutional
because they constitute criminal penalties or punitive
damages. Secondly, MPM contends denial of due process
by the appointment of Jack Alexander, KDHE employee,
as Hearing Officer. Finally, MPM alleges that KDHE vio-
lated the statute requiring notice and hearing before
imposition of the civil penalties.
FINDINGS OF FACT
1. Stanley C. Grant, Ph.D., Secretary, Kansas
Department of Health and Environment, signed three
documents entitled “ORDERED ASSESSING A CIVIL
PENALTY,” dated October 30, 1987 in 88-CV-1046, dated
October 13, 1987 in 88-CV-1238, and dated October 30,
1987 in 88-CV-1470, respectively.
2. The Secretary provided no notice or opportunity
for hearing to petitioner prior to signing and issuing the
above referenced documents.
3. The amount of each civil penalty was established
by the “ORDER ASSESSING A CIVIL PENALTY.”
4. A hearing in the form of an appeal from the civil
penalty was allowed and undertaken in each case.
App. 46
5. In each case, the Secretary issued a Final Order
dated May 27, 1988 in 88-CV-1046, June 30, 1988 in 88-
CV-1238 and August 8, 1988 in 88-CV-1470 and signed a
Correction of Final Order on October 6, 1988 concerning
88-CV-1470, which is case 88-CV-1736.
6. Each Final Order upheld the amount of the civil
penalty assessed in the original Orders.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, the Court
makes the following conclusions of law:
1. The Court finds that the civil penalties autho-
rized by K.S.A. 65-5314 in an amount sufficient to be an
“actual and substantial economic deterrent” do not con-
stitute either punitive damage or criminal penalties.
2. The appointment of Jack Alexander, a KDHE
employee, as Hearing Officer did not violate petitioner's
due process right to a hearing before an impartial exam-
iner.
3. The Court further finds that the civil penalties
assessed by KDHE were imposed without notification
and hearing contrary to the provisions of K.S.A. 65-5314
and 77-508.
4. The Final Orders assessing civil penalties in each
of the consolidated cases are hereby set aside and no
further agency action shall be taken in regard to these
alleged violations of the Asbestos Control Act.
App. 47
RATIONALE
The Court, in reviewing the actions of an administra-
tive agency, is limited to considering whether, as a matter
of law, (1) the agency acted fraudulently, arbitrarily or
capriciously, (2) the administrative order is substantially
supported by the evidence, and (3) the agency’s action
was within the scope of its authority. Hemry v. State Board
of Pharmacy, 232 Kan 83, 652 P.2d 670 (1982). In this case,
the Court is concerned with whether KDHE acted within
the scope of its authority in imposing civil penalties
against MPM for violations of the Asbestos Control Act,
K.S.A. 65-5301, et seq.
The petitioner first raises the issue of the constitu-
tionality of the civil penalties authorized by K.S.A.
65-5314. It is well-settled in the law that a statute is
presumed to be constitution. See Federal Land Bank of
Wichita v. Bott, 240 Kan. 624, 732 P.2d 710 (1987). Peti-
tioner alleges that the civil penalties authorized by the
statute are in the nature of punitive damages and/or
criminal penalties. This challenge has not been specifi-
cally addressed in Kansas.
The Legislature has specifically authorized KDHE to
impose civil penalties “in an amount to constitute an
actual and substantial economic deterrent. . . . ” The
statute specifies that the penalty have a deterrent effect,
which implies deterring future conduct as opposed to
punishing past acts. The Legislature obviously sought to
prevent future violations of the Asbestos Control Act by
allowing penalties to be assessed. No finding of wanton,
fraudulent, malicious, or grossly negligent conduct is
necessary as would be required for the assessment of
App. 48
punitive damages. Tetuan v. A. H. Robins Co., 241 Kan.
441, 738 P.2d 1210 (1987). Further, Woods v. Midwest Con-
veyer Co., 231 Kan. 763, 648 P.2d 234 (1982) does not
control here. In Woods, the agency awarded damages for
pain, suffering, and humiliation, which the Court held
was akin to punitive damages and outside the scope of
the agency’s authority. KDHE did not award damages to
any entity for any of the reasons addressed in Woods.
The civil penalty authorized by the statute is not in
the nature of a criminal penalty. Procedural safeguards of
notice and a hearing are provided by the statute and the
entity being penalized bears no risk of incurring incarcer-
ation or a criminal record. For the violation to be crimi-
nal, it must be willful and the Legislature addressed this
in a separate statute. See K.S.A. 65-5313. Because the civil
penalties do not constitute punitive damages or criminal
penalties and because the Legislature, through the
enabling statute, gave KDHE the authority to issue these
penalties, KDHE acted within the scope of its authority.
This Court perceives no separation of powers problem in
the imposition of civil penalties by KDHE under K-S.A.
65-5314 and the presumption of constitutionality is not
overcome.
The petitioner also raises as improper, the appoint-
ment of Jack Alexander, a KDHE employee, as Hearing
Officer. The Kansas Administrative Procedure Act
(KAPA) does not prohibit the presiding officer from being
an employee of the agency taking the action. It does
provide, however, for the disqualification of the Hearing
Officer for bias, interest, or prejudice upon petition by
any of the parties. K.S.A. 77-514. MPM did not petition
for the disqualification of Jack Alexander.
App. 49
The Kansas Supreme court addressed a similar issue
in Pork Motel Corp. v. Kansas Dept. of Health & Environ-
ment, 234 Kan. 374, 673 P.2d 1126 (1983). That case was
decided prior to the enactment of the KAPA, but cites
with approval the reasoning of the United States Supreme
Court that the “combination of investigating and judging
functions in an agency does not violate due process.” Id.
at 383 (citing Withrow v. Larkin, 421 U.S. 35 (1975)). The
Court in Pork Motel further noted that under the Adminis-
trative Procedure Act all that was required was that the
investigator and the Hearing Officer be responsible to the
agency head through a separate chain of authority. Id. at
383 (citing 5 U.S.C. Sec. 554(d) (1982)). Although there is
no similar procedure in the KAPA, the separation of
functions doctrine has been deemed to provide adequate
due process protection and has been cited with approval
by the Kansas Supreme Court in Pork Motel.
In the instant case, there is no evidence that Jack
Alexander was involved in an investigative role for
KDHE with MPM. According to the record, Mr. Alex-
ander is an employee of KDHE and works in the Bureau
of Water Protection, a separate department. He had no
role in the MPM case until appointed Hearing Officer.
There is no evidence that petitioner’s due process rights
were violated by Mr. Alexander presiding over the hear-
ing.
The final issue raised by petitioner is the sufficiency
of notice and hearing under K.S.A. 65-5314. The statute
reads: “(c) No civil penalty shall be imposed under this
section except upon the written order of the secretary
after notification and hearing, if a hearing is requested, in
App. 50
accordance with the provisions of the Kansas Administra-
tive Procedures Act.”
The procedure followed by KDHE began with an
investigation of the asbestos removal sites controlled by
MPM. The orders assessing the civil penalties were
drafted and reviewed up the line by superiors at KDHE.
Each Order named a fixed penalty amount and contained
an appeal provision. In requesting an appeal, petitioner
was required to state specifically how the Order was
unlawful or unreasonable by sending a notice to the
Secretary. The Secretary signed each Order. KDHE asserts
that the Orders were not final pending the outcome of the
appeal. Each Order was subsequently upheld by Jack
Alexander, the presiding officer, and the civil penalties
were sustained.
The question becomes, then, whether the appeal or
hearing allowed by KDHE after the Orders are issued by
the Secretary meet the requirement of notice and hearing
before the imposition of the penalties. This Court is of the
opinion it does not.
The statute clearly contemplates a hearing and
notice, not an appeal procedure. The hearing conducted
by KDHE required petitioner to show why it should not
be assessed the penalty already imposed by the agency.
At the conclusion of the proceeding, the penalties were
sustained and the Orders became final. To call this a
hearing and notice contemplated by the statue is clearly
form over substance. The penalties were imposed by the
signing of the Orders by the Secretary without notice to
MPM or a hearing if MPM desired one. MPM had no
App. 51
opportunity for the type of hearing participation pro-
vided in the KAPA prior to the penalties being imposed.
The actions, by KDHE were clearly outside the scope of
its authority as granted by the enabling statute, K.S.A.
65-5314.
This outcome is further dictated by the KAPA, which
is incorporated by the enabling statute. Under K.S.A.
77-508, the adjudicative proceeding “shall be the process
for formulating and issuing an order” unless some other
criteria exist which are not pertinent here. This statute is
dispositive of the question regarding the use of the hear-
ing. It is to be conducted in such a way to allow for the
formulation and issuing of the Order. In the instant case,
the procedure was used to appeal the issuance of the
Orders which assessed the penalty. It was not a process to
determine whether the penalty should be imposed and, if
so, in what amount. This was clearly in violation of
K.S.A. 77-508. KDHE was without authority to impose
civil penalties prior to MPM being provided notice and a
hearing.
Pursuant to K.S.A. 77-622, the Court hereby sets
aside the Final Orders issued by KDHE in each of the
cases consolidated for the purpose of this appeal. Because
the record reflects no ongoing violations in any of these
cases, it is the opinion of this Court that justice will not
be served through any additional agency action. KDHE
failed to follow the statutory notice and hearing pro-
cedure and is hereby ordered to take no further action
regarding these alleged violations of the Asbestos Control
Act.
App. 52
The original of this Memorandum Decision and
Order is being filed with the Clerk and shall constitute
the entry of the Court’s judgment. No further Journal
Entry is necessary.
Dated this 11th day of April, 1989.
/s/ Fred S. Jackson
FRED S. JACKSON
DISTRICT JUDGE
Copies mailed to:
John S. Seeber, Esq.
Ms. Yvonne Anderson
App. 53
APPENDIX K
IN THE DISTRICT COURT OF SHAWNEE COUNTY
DIVISION 2
MPM CONTRACTORS, INC., )
Petitioner, ‘ Consolidated
Cases
™ ) Nos. 88 CV 1046
DEPARTMENT OF HEALTH AND } = red sie
ENVIRONMENT OF THE STATE ) te one
OF KANSAS, .
Respondent. )
)
NOTICE OF CROSS-APPEAL
Notice is hereby given that MPM Contractors, Inc.,
Petitioner, appeals from the April 11, 1989 Memorandum
Decision and Order of the Honorable Fred S. Jackson in
the above consolidated cases, 88 CV 1046, 88 CV 1238, 88
CV 1470, and 88 CV 1736 to the Court Of Appeals Of The
State Of Kansas. The Petitioner appeals from the district
court not including in its reasons for its finding in favor
of MPM Contractors, Inc., that the acts of the agency
violated the Fifth and Fourteenth Amendments to the
Constitution of the United States, the Seventh Amend-
ment to the Constitution of the United States, the Bill of
Rights of the Constitution of the State of Kansas, and
Sections 10 and 18 of the Bill of Rights to the Kansas
Constitution.
App. 54
Respectfully submitted,
ADAMS, JONES, ROBINSON
AND MALONE, CHARTERED
By /s/ John S. Seeber
John 5. Seeber — 04785
155 N. Market, Suite 600
Post Office Box 1034
Wichita, KS 67202
(316) 265-8591
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of May, 1989, the
undersigned mailed, postage prepaid, a true and correct
copy of the above and foregoing Notice, addressed to:
Ms. Yvonne Anderson
Staff Attorney
Landon State Office Building
Suite 904
Topeka, KS 66620
/s/ John S. Seeber
John S. Seeber
it
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