UTILICORP UNITED INC., ) Plaintiff, ) ) vs. ) Case No. 00C 667 ) KANSAS DEPARTMENT OF ) HEALTH AND ENVIRONMENT, ) Defendant. ) __________________________)
The above entitled matter comes before the court on Kansas Department of Health and Environment's (KDHE) motion to dismiss Utilicorp United Inc.'s (Utilicorp) Petition for Judicial Review.
KDHE alleges that Utilicorp's Petition for Review of administrative agency action should be dismissed based on Utilicorp's failure to exhaust administrative remedies. The agency action being challenged in Utilicorp's petition is the issuance of an agency air quality permit for Utilicorp's Arthur Mullergren's station in Great Bend, Kansas. The permit was issued to Utilicorp by KDHE on May 11, 2000, pursuant to the Kansas Air Quality Control Act, (KAQA) K.S.A. 65-3001 et seq.
K.S.A. 65-3008(b)(e) is the appeal provision of the Kansas Air Quality Act and provides as follows:
Within 15 days after the issuance of a notice of intent to take any action authorized by subsection (a), (b), (c), or (d) or within 15 days after the secretary's written decision to affirm, modify or reverse a permit decision pursuant to subsection (b) of K.S.A. 1999 Supp. 65-3008a, the permittee may file a request for a hearing with the secretary. Each notice of intent shall specify the provision of this act or rule and regulation allegedly violated, the facts constituting the alleged violation and the secretary's intended action. Each notice of intent or written decision to affirm, modify or reverse a permit decision shall state the permittee's right to request a hearing. Such hearing shall be conducted in accordance with the Kansas administrative procedure act.
KDHE alleges in its motion to dismiss that Utilicorp failed to exhaust its administrative remedies because it failed to request a hearing pursuant to K.S.A. 65-3008b(e).
Utilicorp counters on two separate grounds: 1) that it failed to receive any notice of its right to request a hearing as required by law under K.S.A. 65-3008b(e) and 2) that furthermore it is not required to request a hearing for reconsideration in order to exhaust its administrative remedies.
The court will consider Utilicorp's second argument first. KDHE agrees that Utilicorp is not required to request a hearing for reconsideration. However, KDHE argues that the type of hearing referred to in K.S.A. 65-3008b(e) is not a hearing for reconsideration but instead is a Kansas Administrative Procedure Act evidentiary proceeding. KDHE further argues that K.S.A. 77-607 and K.S.A. 77-612 requires the exhaustion of any administrative remedies prior to seeking judicial review. This court agrees with KDHE's analysis and finds that Utilicorp has failed to exhaust its administrative remedies.
Utilicorp, however, argues that KDHE failed to give written notice of its rights to request a hearing as required by statute. KDHE argues, on the other hand, that it is not required to provide a notice of appeal rights if a permittee does not seek modification during the public comment period.
This court, however, does not see any exception written into the notification portion of the statute for situations in which a permittee does not provide written comment or request modification. The statute requires notice if there is a notice of intent to take any action or if there is "a written decision to affirm, modify or reverse a permit decision." It appears to this court that there has been a written decision to affirm the permit decision and that notice is required by the statute.
In addition, while KDHE alleges that Utilicorp did not request modification or offer written comments during the public hearing, Utilicorp alleges in its petition for review paragraph 6 that "Utilicorp provided comments on the Permit to KDHE prior to issuance." This court is without knowledge as to whether there is a factual dispute or whether Utilicorp offered oral comments, only. However, given the court's analysis of the requirement to provide notice whether the comments were written or oral are of no consequence.
The court, therefore, remands this matter back to KDHE. The court grants Utilicorp 15 days from the receipt of this decision to request a hearing as provided under K.S.A. 65-3008b(e).
The above constitutes the court's ruling on this matter and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of August, 2000.
__________________________
Nancy Parrish
Judge, Third Judicial District
Division Fourteen
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 4th day of August , 2000, to the following:
James M. Stephens
Blackwell Sanders Peper
2300 Main Street, Suite 1100
Kansas City, Missouri 64108
Yvonne C. Anderson
KDHE Capitol Towers, Suite 203
400 SW 8th Street
Topeka, Kansas 66603
________________________
Norma J. Dunnaway
Administrative Assistant