Central States Tire Recycling, LLC v. State, Department of Environmental Quality

687 N.W.2d 681, 268 Neb. 712, 2004 Neb. LEXIS 168
CourtNebraska Supreme Court
DecidedOctober 15, 2004
DocketNo. S-03-556
StatusPublished
Cited by3 cases

This text of 687 N.W.2d 681 (Central States Tire Recycling, LLC v. State, Department of Environmental Quality) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central States Tire Recycling, LLC v. State, Department of Environmental Quality, 687 N.W.2d 681, 268 Neb. 712, 2004 Neb. LEXIS 168 (Neb. 2004).

Opinion

Wright, J.

NATURE OF CASE

An order issued by Nebraska’s Department of Environmental Quality (DEQ) revoked the “Scrap Tire Hauler, Collector, and Processor Permit” that DEQ had previously issued to Central States Tire Recycling of Nebraska, LLC (Central States). Central [713]*713States filed an appeal pursuant to the Administrative Procedure Act in the Dodge County District Court. The district court affirmed the order of DEQ.

SCOPE OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004).

When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

The interpretation of statutes and regulations presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. See A & D Tech. Supply Co. v. Nebraska Dept. of Revenue, 259 Neb. 24, 607 N.W.2d 857 (2000).

FACTS

At all times relevant to this case, Central States was in the business of hauling, collecting, and processing “scrap tires.” Central States mainly concerned itself with collecting scrap tires within the vicinity of Wisner, Nebraska, and producing a product known as Enviro-block. Central States describes this product in the following manner:

The Enviro-block tire bale is a compacted, rectangular cube made from cut and arranged parts of 100 scrap car tires, or an equivalent in scrap truck tires. . . . The Enviro-block is intended to be used as a long lasting engineered solution for civil and agricultural engineering applications, livestock management, and marine structures.

Brief for appellant at 6.

On July 28, 2000, DEQ issued Central States a 5-year permit to haul, collect, and process scrap tires and to operate a scrap tire collection site in Nebraska. The permit included a number of general conditions. The second of these conditions stated that [714]*714“[t]he permittee is prohibited from depositing scrap tires at any location not permitted or licensed to accept scrap tires. [DEQ] on a case-by-case basis may approve alternative sites.” The permit required that Central States “comply with Title 136 [the Scrap Tire Management Rules and Regulations] and all other applicable local, state, and federal requirements.”

After receiving its permit, Central States began collecting scrap tires for a fee. These tires would then be used to make Enviro-blocks. Central States made between 75 cents and $1 per 20 pounds when collecting scrap tires. It usually sold the Enviro-blocks for $7.50 to $8 per ton, although the sale price was at times as high as $12 to $15 per ton.

In September or October 2000, Central States applied for permission to use Enviro-blocks in a project to improve the company’s manufacturing site in Wisner. The project was approved by DEQ, and Central States used Enviro-blocks as a means of stabilizing the soil and elevating the grade for its use as a manufacturing site.

In January 2001, William Miner, the president and major stockholder of Central States, bought two plots of undeveloped property in Wisner. The developer of the property was to be an entity called TransAgra Capital Corporation (TransAgra). Miner was also the president of TransAgra.

In March or April 2001, Central States applied to DEQ for permission to use Enviro-blocks as a lightweight fill on one of the plots that Miner had purchased in January. Miner testified that this project was similar to the project DEQ had approved for Central States’ manufacturing site. Specifically, he stated that both properties were low lying, below road level, and not suitable for development without fill. Before Central States received approval for this project from DEQ, TransAgra bought approximately 4,300 Enviro-blocks from Central States, which began placing them on the property as fill.

DEQ commenced an investigation of the property after complaints were filed by neighbors. A program specialist in the compliance department of DEQ was sent to investigate the site on August 31, 2001. David Haldeman, an administrator with DEQ, called Miner that day, informed him that he did not have [715]*715permission to deposit scrap tires at the location, and ordered him to immediately cease the activity.

On September 6, 2001, DEQ sent Central States a notice of violation which stated that the August 31 inspection revealed the placement and burial of tire bales. The letter noted that such a project had not been approved by DEQ and offered a plan for voluntary compliance to be completed by September 20. Miner subsequently sent a letter to DEQ denying the allegations contained in the notice of violation.

A second notice of violation was sent to Central States on October 3, 2001. This letter offered a plan for voluntary compliance to be completed by November 1. Haldeman testified that Central States had not taken any of the steps required for compliance.

DEQ then sent Central States a notice of intent to revoke its permit to haul, collect, and process scrap tires. The notice stated that Central States had deposited scrap tire bales at an unpermitted and unlicensed site without obtaining or possessing the approval of DEQ. DEQ found this action to constitute a violation of the conditions of Central States’ permit which prohibited it from depositing scrap tires at any location not permitted or licensed to accept scrap tires.

In its answer and request for a hearing, Central States denied that it had deposited scrap tires at any location not permitted, licensed, or approved by DEQ. It alleged that Enviro-blocks are a tire-derived product and not properly classified as scrap tires. Further, it asserted that DEQ lacked the authority to either limit or restrict the placement of Enviro-blocks or revoke Central States’ permit. Central States alleged that it had complied with all terms and conditions.

A hearing was held before DEQ, and on October 18, 2002, the hearing officer issued his findings of fact and conclusions of law. The final order issued by the director of DEQ determined that Enviro-blocks were not tire-derived products and that their placement could be regulated by DEQ. In response to Central States’ argument that 136 Neb. Admin. Code (1996) was unconstitutionally vague, the director concluded that he lacked the authority to find any state law, agency rule, or regulation unconstitutional.

[716]*716The director also concluded that any challenges that Central States offered against the permit conditions were collateral attacks of a final and binding order of DEQ. As such, he concluded that Central States could have appealed these conditions or sought a modification or review of the conditions before taking actions in defiance thereof.

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CENTRAL STATES TIRE RECYCLING v. State
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Cite This Page — Counsel Stack

Bluebook (online)
687 N.W.2d 681, 268 Neb. 712, 2004 Neb. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-states-tire-recycling-llc-v-state-department-of-environmental-neb-2004.