April 2005

 

The following summarizes some of the cases decided in the winter and early spring 2005 by the various boards that make up the state�s Environmental Hearings Office, in particular the Shorelines Hearings Board (SHB) and the Pollution Control Hearings Board (PCHB).  This summary was prepared by Bill Clarke, a member of the Pollution Control Hearings Board and Shoreline Hearing Board, and Kay Brown, Administrative Appeals Judge for the Boards.

 

 

I. Pollution Control Hearings Board

 

A. Standing

 

Olympia and Vicinity Building and Construction Trades Council and Affiliated Unions v. Department of Ecology and Cardinal FG Co., PCHB 04-147, Order on Motion to Dismiss for Lack of Standing (January 20, 2005).

 

The Olympia and Vicinity Building and Construction Trades Council and Affiliated Unions (�OBCT�) appealed the issuance of a prevention of significant deterioration permit by the Department of Ecology for a glass plant in Lewis County. Respondents moved to dismiss the association of unions on the basis of lack of standing.

 

The Board, in analyzing the standing arguments, applied the three-part test outlined by the court in International Ass�n of Firefighters, Local 1789 v. Spokane Airports, 146 Wash.2d 207, 213-214, 45 P.2d 186 (2002). This test has been identified by the court as the proper test to use to determine the standing of an association. For an association to establish standing it must show that: (1) the members of the organization would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the organization�s individual members.

 

The Board concluded that the first prong of the test (establishment of individual members� standing) could be accomplished by demonstrating (a) the governmental action causes a specific and perceptible injury-in-fact that is immediate, concrete and specific, and (b) the interest the individual seeks to protect falls within the zone of interest that the environmental statute is designed to protect. Save a Valuable Environment v. Bothell, 89 Wn.2d 862, 865-68, 576 P.2d 401 (1978). OBCT was able to meet this prong by establishing impacts on some of their individual members through their declarations. The Board held that OBCT met the second prong of the test by establishing that it was within the purpose of their organization to act on behalf of affiliated labor organizations and their membership in regulatory and judicial spheres on matters of environmental conditions affecting work, home and community. Finally, the Board concluded that the third prong of the test would rarely, if ever, be an issue at the Board, because this prong is applicable where an association seeks money damages on behalf of individual members, and damage claims are not cognizable before the Board.

 

B. Collateral Estoppel

 

Methow Valley Irrigation District v. Department of Ecology and Okanogan Wilderness League, PCHB 04- 005, Summary Judgment (November 16, 2004).

 

Ecology issued orders to Methow Valley Irrigation District (�MVID�) in 2002 reducing its allowed diversion of water from the Twisp and Methow Rivers on the basis that higher diversions constituted the waste of water prohibited under the water code. MVID appealed these orders to the PCHB in 2002. In 2003, the Board issued a decision affirming the waste orders and ordering Ecology to issue a supplemental order reducing waste based on availability of public funding sources. MVID appealed the Board�s order to Okanogan County Superior Court. Ecology then issued a supplemental order further reducing MVID�s authorized diversions. MVID appealed this supplemental order to the PCHB. In its appeal, MVID raised a number of issues or defenses that it had raised in its appeal of the 2002 waste orders. Ecology and the Okanogan Wilderness League (�OWL�) filed motions seeking to prohibit certain issues or claims from being raised on the basis of collateral estoppel.

 

The doctrine of collateral estoppel prevents re-litigation of issues between the same parties if the issues were actually litigated and decided in a prior case by a competent tribunal. Under Washington law, collateral estoppel can be applied to quasi-judicial or administrative proceedings. The PCHB has applied principles of collateral estoppel to prevent re-litigation of issues previously decided between the same parties. Friends of the Cowlitz v. Department of Ecology and City of Tacoma, PCHB 03-100, Order Granting Partial Summary Judgment (January 14, 2004); Weyerhaeuser v. Tacoma Pierce County Health Dept. PCHB 99-067 et al., Amended Summary Judgment and Order of Dismissal (March 2, 2000). Four criteria must be met before collateral estoppel is applied to preclude re-litigation of an issue: (1) the issues decided in the prior adjudication are identical with the ones presented in the current case; (2) there was a final judgment on the merits; (3)� the party against whom collateral estoppel is plead was a party in the prior adjudication; and (4) the application of the doctrine will not work an injustice. Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600 (2001), Reninger v. Department of Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998).  The party asserting application of the doctrine of collateral estoppel bears the burden of proving all of its elements.   State v. Vasquez, 109 Wn. App. 310, 314-15, 34 P.3d 1255 (2001).  The Board determined that many of the issues raised by MVID in its appeal were decided in the appeal of the 2002 order, were on appeal to Okanogan County Superior Court, and thus could not be raised again in the 2003 appeal.

 

C. NPDES Permits and Enforcement Authority

 

Jay Rude v. Department of Ecology, PCHB 04-044, Findings of Fact, Conclusions of Law, Order (December 14, 2004).

 

This appeal involved the revocation of a wastewater treatment plant operator�s license at McNeil Island Corrections Center (�MICC�). The treatment plant at MICC malfunctioned over a weekend, causing a spill of sewage sludge. The operator in charge of the facility took certain actions to determine the cause of the spill and to perform minor cleanup, but did not contact Ecology regarding the spill. The NDPES permit for the facility included a standard general provision that Ecology be contacted if a spill occurs. MICC had conflicting policies regarding the chain of command for communication at the treatment plant based on prior whistleblower incidents relating to NDPES permit compliance.

 

Ecology revoked the operator�s wastewater treatment license for one year based on negligence due to its communication policies and failure to comply with reporting provisions in the NDPES permit. The Board affirmed Ecology�s revocation, finding that, while MICC�s unclear lines of communication did not support the revocation for negligence, Ecology�s revocation based on failure to follow permit terms was proper.

 

Port of Seattle v. Department of Ecology, PCHB 03-140, Airport Communities Coalition et al. v. Department of Ecology and Port of Seattle, PCHB 03-141, 03-142, Findings of Fact, Conclusions of Law, Order (October 18, 2004).

 

This case was an appeal of the NDPES permit issued to Port of Seattle�s Sea-Tac International Airport by Ecology. The appeal raised a number of issues, including the validity of compliance schedules and AKART (all known, available and reasonable treatment) analysis, adequacy of monitoring, designation of wetlands receiving stormwater as waters of the state, and classification of Sea-Tac Airport�s water treatment system. Sea-Tac Airport covers approximately 2,500 acres, and has both industrial wastewater and stormwater collection systems. The industrial wastewater system area generally coincides with the airport terminal area. Within this area, airplanes are treated with de-icing fluids during certain weather events. These de-icing fluids exert high level of Biological Oxygen Demand (�BOD�). Water from the industrial wastewater area is collected and sent to an industrial wastewater treatment plant. The runway area and other parts of the airport contribute stormwater. Stormwater from the North airport area goes to Lake Reba and Miller Creek, while stormwater from runway and South airport area goes to Northwest Ponds and Des Moines Creek.

 

On summary judgment (July 2, 2004), the Board determined that the discharge from the industrial wastewater treatment plant are wastewater, not stormwater discharges subject to the schedules in 33 U.S.C. �1342(p)(4)(A). After a five-day hearing, the Board determined that the permit did not comply with AKART requirements and the proper relationship between technology based and water quality based standard, including the proper analysis of the BOD level threshold for diverting water to King County�s South Treatment Plant (�STP�) in Renton instead of to the airport�s marine outfall. Airport Communities Coalition et al. challenged the compliance schedule allowed for sending BOD wastewater to the King County STP. Ecology had previously indicated that the BOD pipeline would be constructed by 2004, but this did not occur. The Board determined that even though Ecology had failed to require AKART in the �shortest, reasonable period of time,� the 2004 NDPES Permit, not previous permits, was the basis for the appeal and that deadlines from previous permits could not be subject to appeal now.

 

The Board determined that Sea Tac Airport�s industrial wastewater treatment plant is not a �publicly owned treatment works� under the Clean Water Act, based on Ecology definitions used to implement the CWA. TheBoard determined that structural and operational changes to Sea-Tac Airport, and the Stormwater Pollution Prevention Plan were sufficient to meet BMP-based requirements. The Board determined that Ecology had concluded Lake Reba is not a water of the state without performing a wetland delineation or other technical evaluation. The Board remanded the permit to Ecology for a number of further actions, including performing a new AKART analysis, developing a new compliance schedule for the industrial wastewater treatment plant, revising the receiving water study, modifying acute and chronic toxicity testing requirements, and establishment of a mixing zone will be based on the revised AKART analysis.

 

II. Shorelines Hearings Board

 

Preserve Our Islands et al. v. King County and Northwest Aggregates, SHB 04-009, 04-010, Summary Judgment (August 10, 2004), Findings of Fact, Conclusions of Law, Order (November 3, 2004).

 

The Board reversed King County�s decision denying shoreline permits to Northwest Aggregates for a barge loading dock on the eastern shore of Maury Island. A sand and gravel pit at the site operated during the 1960s and 1970s using a conveyor and barge to move sand and gravel from the island. Barging of sand and gravel ceased in the late 1970�s. The gravel pit owner sought permits to renew sand and gravel barging, including shoreline permits for reconstruction of an existing but non-functional conveyor and barge loading dock. The Board initially ruled on several of the multiple issues identified by the parties on summary judgment. King County moved to dismiss the appeals on the basis that the owner of the aquatic lands at issue, the Washington Department of Natural Resources, had not been named or served. The Board, in rejecting this argument, opined that there is no provision in the Shoreline Management Act (�SMA�), Ecology�s SMA rules, or Shoreline Hearings Board rules requiring that a property owner be included as an indispensable party or that they be served. The Board also ruled that it had jurisdiction over shoreline exemption issues when the issues are raised as part of a permit appeal. However, in this case, the question of whether this project was exempt from shoreline permit requirements because it constituted �normal maintenance and repair� raised issues of fact that could not be determined on summary judgment. The shoreline exemption issue was ultimately dropped. The Board also considered and agreed with the appellants, that the Board lacked jurisdiction to determine whether Northwest Aggregates could continue to use and operate the barge-loading dock without a shoreline conditional use permit.

 

One major issue under contention in the summary judgment was whether the project was a water dependent use. King County had concluded it was not water dependent, and therefore that it was ineligible for a shoreline substantial development permit (�SDP�) and a conditional use permit (�CUP�) in the conservancy environment in which it was located. In considering this question, the Board first determined that the principal use at issue was the project as a whole, consisting of the sand and gravel operation, including the mine and proposed conveyor and barge loading dock. Based on this analysis, it went on to conclude the principal use was water dependent. The Board also considered and rejected appellants� argument that the project was a prohibited industrial or commercial use under the King County Shoreline Master Program. Instead, the Board agreed with King County that based on provisions in its own code, the use as a sand and gravel mine was a resource use. The decision also included consideration of King County�s Comprehensive Plan designations for the site. Following statutory construction principles, the Board determined that the provisions of the SMA and King County SMP should be harmonized with GMA Plan designations if possible. Following the dismissal of some, but not all of the issues on summary judgment, the case went to a nine-day hearing. The Board concluded, in its final decision, that the SEPA review of the project had been adequate, and that the proposal would not have adverse environmental impacts in violation of SEPA or the SMA. Absent additional conditions, however, the project as proposed could be inconsistent with King County Shoreline Master Program and SMA requirements relating to recreation, noise, and the existing character of the shoreline. Consequently, the Board established conditions for operation of the barge loading dock, including limiting the hours of operation, and modifications to existing monitoring plans. The Board reversed King County�s denial of the permits and remanded the matter to King County for issuance of a shoreline substantial development permit and shoreline conditional use permit with conditions consistent with the Board�s order. The Board�s decision is currently on appeal to King County Superior Court.

 

Wallingford Community Council v. City of Seattle et al., SHB 04-012, Summary Judgment, Findings of Fact, Conclusions of Law, Order (January 24, 2005).

 

This case involves issuance of an SPD to convert a major vessel repair yard on Lake Union to a dry boat storage and launch facility. The Board decided several of the 15 issues identified in the case on summary judgment. The Board ruled it did not have jurisdiction over an issue regarding ownership of a portion of a right-of-way, and dismissed this issue. The Board also concluded that Wallingford Community Council (�WCC�) had not met its burden of proof, or established a material factual issue for trial, regarding compliance with the SMA, state shoreline regulations, and relevant shoreline master program provisions with the exception of: (1) whether parking should be allowed within 50 feet of the water�s edge; (2) whether the 35-foot height limitation applies only to structures; and (3) the issues pertaining to view impairment under the shoreline laws and substantive SEPA provisions. The Board reserved these issues for hearing, and granted summary judgment on all other issues pertaining to compliance with applicable shoreline laws. Finally, the Board concluded that WCC had failed to meet its burden of proof or establish any material factual issues for hearing on any of the procedural SEPA issues because WCC was unable to prove the City�s threshold determination of nonsignificance was clearly erroneous. Therefore, the Board granted summary judgment on all SEPA procedural issues.

 

At hearing on the remaining factual issues, the Board concluded that the project did not violate the view protection requirements provided under the SMA, the Seattle Shoreline Master Program, or the SEPA provisions. The Board was split on the height issue. Three members of the Board found that the proposed project did not exceed the 35-foot height limit established for the Urban Maritime Environment. They reasoned that the limit is applicable only to the boat storage rack structures and not the additional height attributable to vessels contained within the boat storage racks.

 

The other three Board members disagreed with this interpretation and found that the proposed project violated the 35-foot height restriction. They concluded that the Shoreline Master Program and SMA have the purpose of regulating developments and uses on shorelines and that these laws are not limited only to structures. Because four members of the Board were unable to agree on the height issue, the City�s decision stands based upon operation of WAC 461-08-555(1). The Board also found that the alternative parking arrangement submitted during the hearing by the project applicants moved all of the parking spaces more than 50 feet outside of the water�s edge, and therefore complied with the setback requirement, thus resolving this issue in favor of the City. The Board�s decision is currently on review in King County Superior Court.

 

Ed Strickland v. City of Seattle, SHB 04-011, Summary Judgment (December 23, 2004).

 

Strickland had applied to the City for a shoreline substantial development permit (�SDP�) to reconfigure an existing marina pier at Northlake Marine Works on Lake Union. The reconfiguration, as proposed, would have resulted in an increase in overwater coverage of 216 square feet. The City approved the SDP with conditions which prohibited an increase in overwater coverage in the vicinity of the proposal, and which prohibited parking on the pier. Strickland challenged the conditions.

 

The City moved for summary judgment, arguing that as a matter of law it had the authority to prohibit an increase in overwater coverage under its Shoreline Master Program and its SEPA policies. Neither party contested the fact that Chinook salmon inhabit Lake Union, that Lake Union is a migration route for Chinook salmonids, and that Chinook salmon are listed as a threatened species under the Endangered Species Act. The Board concluded as a matter of law, based on these uncontested facts, that the City had authority under either its Shoreline Master Program or SEPA to prohibit an increase in overwater coverage.  The Board also concluded that the City had the authority to prohibit overwater parking under its shoreline master code, and dismissed the appeal.

 

C.F. and Betty McNeal et al. v. Douglas County, Washington State Parks and Recreation Commission, Washington State Department of Transportation, and PUD No. 1 of Chelan County, SHB 04-002, Summary Judgment (November 17, 2004), Findings of Fact, Conclusions of Law, Order (March 4, 2005).

 

This appeal was brought by owners of orchards in the Baker Flats area of Douglas County, north of East Wenatchee. The Washington State Parks and Recreation Commission (�Parks�) proposed the Rocky Reach Trail to run from East Wenatchee north along the Columbia River to Rocky Reach Dam. The trail would be located mainly in a public right of way acquired by Washington State Department of Transportation (�WSDOT�) in the 1950s for highway purposes. Parts of the proposed trail location are within shoreline jurisdiction. Over the last few decades, the WSDOT right of way has been leased to the orchardists who grow a variety of tree fruits.

 

The permitting and environmental review process occurred over a number of years. Parks identified the proposed trail as a recreational trail in the beginning of the permit process. In addition to a shoreline permit, Parks initially identified a Douglas County recreational zoning overlay and zoning conditional use permit as required permitting processes for trail approval. WSDOT disagreed with the identification of the trail as recreational and with the use of a WSDOT right-of-way for recreational purposes. Thus, the project was described as a multi-modal transportation use, including recreational uses, that was related to the nearby by Highway 2/97 transportation corridor. The only local approval sought for the trail was the shoreline permit.

 

The McNeals and other orchardists appealed a number of issues, including the underlying authority of Parks and WSDOT to pursue the project, the impacts of the trail on agricultural properties, adequacy of SEPA review, and whether the project complied with the SMA, the shoreline master program and comprehensive plan. On summary judgment, the Board resolved a number of appeal issues, determining that it did not have jurisdiction over compliance with land use laws not incorporated into the local shoreline master program, whether Parks or WSDOT had authority to pursue or fund the project, that no shoreline conditional use permit was required, and that the trail was not prohibited by previous Board decisions concerning the same WSDOT right-of-way.

 

After a two-day hearing, the Board determined that the proposed trail complied with the Douglas County Shoreline Master Program and the SMA, that the trail was compatible with surrounding agricultural land uses, and that SEPA review was adequate. Related land use appeals of the proposed trail are before the Douglas County Superior Court in a LUPA appeal.