No. 5-201 / 03-2115Court of Appeals of Iowa.
Filed April 28, 2005
Appeal from the Iowa District Court for Linn County, Thomas Horan, Judge.
Petitioners appeal the district court’s decision on judicial review upholding the Iowa Division of Labor Services’ denial of their application for an asbestos removal permit. AFFIRMED.
Douglas Herman of Herman Law Office, Monticello, for appellant.
Thomas J. Miller, Attorney General, John Lundquist and Karen Doland, Assistant Attorneys General, for appellee.
Heard by Mahan, P.J., Zimmer, J., and Beeghly, S.J.[*]
MAHAN, P.J.
I. Background Facts Proceedings
Jerry Intlekofer is the president and sole shareholder of Affordable Asbestos Removal, Inc. The company was previously known as Economy Solar Corporation. Intlekofer has also been an employee of ESCORP Associates, Ltd. All of these companies were engaged in the business of removing asbestos, and they received asbestos contractor permits from the Iowa Division of Labor Services. Intlekofer had a contractor supervisor asbestos license.
Asbestos removal must comply with the Clean Air Act, 42 U.S.C. § 7401 (1990), and the National Emissions Standards for Hazardous Air Pollutants (NESHAP), 40 C.F.R. § 61.145 (1993). The Iowa Department of Natural Resources (DNR) has been delegated authority to enforce these federal laws. See Iowa Code §455B.105 (2001). Affordable Asbestos, and the other companies associated with Intlekofer, Economy Solar and ESCORP, all received notices of violations by the DNR.[1]
In 1999 the Division notified Affordable Asbestos that it intended to deny its permit renewal applications. The parties subsequently entered into a settlement agreement that provided the permit would be granted, but Affordable Asbestos was required to hire Michael Buelow as a consultant to visit each project and to file a written report with the Division concerning the same. Further, Affordable Asbestos was to have no further violations of applicable state or federal standards for asbestos removal.[2]
On January 29, 2001, the Division denied the renewal applications of Affordable Asbestos. Iowa Code section 88B.8(3) (2001) provides that the Division may deny a permit or license if the applicant “[f]ails to meet any applicable federal or state standard for removal or encapsulation of asbestos.” The Division stated that Affordable Asbestos had numerous violations of applicable asbestos removal standards.
Affordable Asbestos protested the denial, and a hearing was set before an administrative law judge (ALJ). At the hearing, Affordable Asbestos sought to question the Deputy Labor Commissioner, Kathleen Uehling, about the reasons for the Division’s denial of its permit renewal application. The ALJ refused to permit questioning of Uehling on other than procedural questions.
The ALJ determined Affordable Asbestos and its predecessor companies had a history of violating applicable asbestos removal laws. The ALJ also determined that Affordable Asbestos had violations after the settlement agreement notified the company there could be no further violations. Moreover, it had not hired Buelow as a consultant for every project, and even for the projects that Buelow had been a consultant, he had not filed a written report for every project. The ALJ affirmed the denial of the renewal application. The Labor Commissioner affirmed the decision of the ALJ.
Affordable Asbestos filed a petition for judicial review. The district court determined the agency had properly refused to permit questioning of Uehling. The court also found substantial evidence in the record to support the Division’s decision not to renew Affordable Asbestos’s permit for asbestos removal. Affordable Asbestos appeals.
II. Standard of Review
Our review under Iowa Code chapter 17A is for the correction of errors at law, not de novo. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). Our review is guided by section 17A.19(10). The district court, as well as this court, is bound by the agency’s factual findings if they are supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414
(Iowa 2001). We consider all of the evidence in the record Dawson v. Iowa Bd. of Med. Exam’rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence is not insubstantial merely because it would have supported contrary inferences. Wal-Mart Stores, 657 N.W.2d at 499.
III. Testimony of Witness
Affordable Asbestos claims the agency erred by not permitting it to question Uehling about the reasons for the denial of its asbestos removal permit.
The Iowa Supreme Court addressed a similar issue in State ex rel. Miller v. DeCoster, 608 N.W.2d 785, 790 (Iowa 2000), where a party sought to question commission members concerning their reasoning in making a decision. The supreme court determined:
We are convinced the court plainly acted within its broad discretion to limit the examination of the commissioners concerning their mental processes in reaching their referral decisions. The type of examination sought here by DeCoster was rejected over half a century ago by the United States Supreme Court in United States v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 2d 1429 (1941). There, in an action challenging an order issued by the United States Secretary of Agriculture, the Court likened the agency head to a judge and held he should never have been subjected to examination at trial concerning the process by which he reached the conclusions in his order. Morgan, 313 U.S. at 422, 61 S. Ct. at 1004-05, 85 L. Ed. 2d at 1435-36. Following Morgan,
state courts have consistently refused to permit agency decision makers to be examined about their decision-making processes.
DeCoster, 608 N.W.2d at 790 (other citations omitted). Any examination of agency decision makers is limited to procedural matters. Id.
We note section 88B.1(3) provides that the term “Commissioner” means the labor commissioner or the labor commissioner’s designee. In denying the asbestos removal permit, Uehling was the commissioner’s designee. We conclude the agency did not err in limiting the questioning of Deputy Commissioner Uehling to procedural matters. Under DeCoster, Uehling could not be questioned concerning the agency’s reasons for denying the renewal of the asbestos removal permit. See id.
IV. Substantial Evidence
Affordable Asbestos contends the agency’s decision is not supported by substantial evidence. It asserts that there was no evidence of violations that posed a serious risk to employees, subcontractors, or the environment since the date of the settlement agreement. Affordable Asbestos disputes the evidence relied upon by the agency.
The evidence showed that in March 1999, Affordable Asbestos received a notice of violation from the DNR based on its work at the University of Iowa Oakdale facility for failing to keep asbestos-containing material adequately wet, in violation of NESHAP, 61 C.F.R. § 61.145(c). In July 2001 Affordable Asbestos received a notice of violation because during its work at the Ottumwa Regional Health Center it failed to remove all regulated asbestos containing material and failed to keep all waste containing asbestos wet until collected and contained, in violation of federal law. In August 2001 Affordable Asbestos received a notice of violation for similar problems at the Central Fire Station in Davenport.
Marion Burnside, an inspector with the DNR, testified there was no safe level of exposure to asbestos because asbestos was a known carcinogen. Burnside testified Affordable Asbestos had more than paperwork violations; the company had emission control violations. He also testified the violations of Affordable Asbestos far outnumbered that of other companies.
There is substantial evidence in the record to show Affordable Asbestos had continuing serious violations of asbestos removal laws, and that this was an adequate reason to deny the permit renewal application. See Iowa Code § 88B.8(3) (providing a license may be denied if an applicant “[f]ails to meet any applicable federal or state standard for removal or encapsulation of asbestos”). Substantial evidence supports the agency’s decision to deny the permit applications of Affordable Asbestos and Intlekofer.
We affirm the decision of the district court and the Iowa Division of Labor Services.
AFFIRMED.