BEFORE THE POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
ALLSTAR, INC., a Washington corporation, )
v. ) PCHB NOS. 99-021, 99-036
) 99-039, 99-052
BENTON CLEAN AIR AUTHORITY, a )
Washington municipal corporation, ) FINDINGS OF FACT
) CONCLUSIONS OF LAW
Respondent. ) AND ORDER
This matter came on for hearing before the Pollution Control Hearings Board (Board) on August 28 and 29, 2000, in Kennewick, Washington. Allstar, Inc. and Gage Property Development Co. LLC (Allstar) appealed four penalties assessed by Benton Clean Air Authority (BCAA) for dust control violations in connection with site preparation of the Birchfield Meadows project in Kennewick, Washington. Written closings were completed September 29, 2000.
Administrative Appeals Judge, Phyllis K. Macleod, presided for the Board. The Board was comprised of James A. Tupper, Jr. and Robert V. Jensen, who was present for the second day of proceedings and reviewed a tape recording of the remainder of the hearing. Board member Ann Daley did not participate in reaching this decision. Attorney John C. Bolliger represented Allstar and Gage Property Development LLC. Attorney Robert Swisher represented BCAA. The hearing was recorded by Tara Jensen of Bridges & Assoc. Reporting Service, Kennewick, Washington.
Witnesses were sworn and heard, exhibits were introduced, and both parties presented written closing arguments to the Board. Based upon the evidence presented, the Board makes the following:
FINDINGS OF FACT
The BCAA is a municipal corporation with responsibility for enforcement of the Washington Clean Air Act and its implementing regulations in Benton County. RCW 70.94.332. Those regulations include WAC 173-400-040(2), which prohibits fugitive dust emissions in sufficient quantity to interfere unreasonably with another's use or enjoyment of property and WAC 173-400-040(8)(a), which requires that reasonable precautions be taken to prevent such emissions.
Allstar Inc. is a civil construction firm in the Tri-Cities area engaged in installation of water, sewer and power utilities and structural concrete. Brothers Craig Emory and Bruce Emory are principals of the firm. They have been engaged in the construction business in eastern Washington for over 24 years. Allstar had not been cited for an air quality violation prior to the incidents in controversy in this case, although BCAA sent a letter to Allstar in April 1998 regarding dust emission regulations.
Gage Property Development LLC was the owner of a fifteen-acre site off Gage Avenue in Richland, Washington. Gage contracted with Allstar to provide site grading and utility work on this parcel in preparation for a housing subdivision known as Birchfield Meadows. Allstar was responsible for providing dust control on the site.
Prior to its development, the property was a vacant field with an orchard. No unusual problems with dust were experienced by the neighbors before the Birchfield Meadows site preparation began.
Allstar started work on the site in August 1998. The majority of the fifteen acres was cleared at the outset of the work. This approach made grading, excavation, utility installation and roadbed construction easier. At the same time, disturbing such a large area of open ground increased the challenge of adequately controlling dust emissions.
BCAA inspectors first responded to a citizen complaint about dust emissions from the site on October 2, 1998. The inspector noted “extreme” amounts of dust blowing off the site toward the Peachtree Lane. Apartment units on Peachtree Lane abut the site and were directly impacted by the dust coming from Birchfield Meadows. On October 2 the dust control measures consisted of six sprinklers and a hand held fire hose. These measures were not adequate to prevent significant amounts of dust from leaving the property. BCAA representatives talked to Bruce and Craig Emory on the site and informed them that the dust control measures were inadequate.
On October 8, 1998 a BCAA inspector visited the project and again noted dust moving off the property. The inspector called Bruce Emory and informed him of the need to achieve control of the dust on the site.
BCAA received another citizen complaint about dust movement off the property on or around October 13, 1998. An inspector responded to the site and observed dust movement that was characterized as “excessive” impacting the Peachtree Lane residences.
Based upon these three incidents, BCAA issued a Notice of Violation and Order of Correction to Allstar dated October 14, 1998. The Order of Correction identified three necessary actions: (1) submission of a dust control plan for approval; (2) after approval, active implementation and management of the plan to minimize fugitive dust emissions; (3) use of additional control measures if the “control measures outlined in the dust control plan prove to be inadequate or ineffective.”
Allstar responded by submitting a dust control plan dated October 28, 1998. The plan was rejected by BCAA. Allstar resubmitted a revised plan dated November 3, 1998. No response was received from BCAA to this plan. Allstar interpreted this silence as approval of the plan provisions. The dust control plan identified fire hydrants on the property as the source of water for dust control and indicated that control measures would be implemented daily. The plan further outlined a backup plan to provide additional equipment and manpower to water if needed.
Based upon the events of October 2, 8 and 13, 1998, BCAA issued Notice of Penalty No. 19980036, in the amount of $3,500 for violations of WAC 173-400-040(2) and WAC 173-400-040(8).
Citizen complaints about fugitive dust were received by BCAA again on January 11, 12, 14 and 15, 1999. On January 14, 1999 BCAA inspectors visited the property and observed dust leaving the site. The only control measure in place at the time of the inspection was a single water truck. Dust was blowing off the site toward the residences on Peachtree Lane. Dust was also impacting Gage Boulevard. In fact, Fire Department personnel deemed the intersection of Gage Blvd. and Keene a safety hazard on January 14, 1999 when visibility was significantly impaired by dust from the site. The Fire Department took its own equipment onto the site and began watering the area in an effort to reduce the emissions. Bruce Emory of Allstar was contacted by BCAA on January 14 and told to increase efforts to insure control of fugitive dust.
The dust problems continued on January 15, 1999 and BCAA received additional citizen complaints. Inspectors responded to the site. Dust was blowing from the Birchfield parcel onto the Peachtree Lane residences and there was no watering in progress. During a second visit that afternoon, a single watering truck was applying water to the site and one individual was applying water through a hand held hose. These control efforts were inadequate to provide dust control for a site fifteen acres in size.
When BCAA personnel talked to Bruce Emory about why sprinklers were not being used as a control measure, they were told that the irrigation water was turned off and that the City did not want them to run sprinklers off the fire hydrants.
Based upon the fugitive dust emissions on January 14 and 15, 1999, BCAA issued Notice of Violation 19990002 to Allstar dated January 29, 1999 and Notice of Penalty 19990002 dated March 9, 1999. A penalty of $9,000 was imposed for violations of WAC 173-400-040(2) and WAC 173-400-040(8).
On February 1, 1999 a number of citizens complained to BCAA about dust blowing off the Birchfield site. Large plumes of dust were originating from the site and depositing dust directly onto neighboring residences. Dust was not confined to the exterior of the homes and accumulations were present on interior windowsills and counters.
Allstar’s control measures on February 1, 1999 consisted of the gravity flow water truck and 6-7 sprinklers on a single sprinkler line. These control measures were not acting and were not reasonably calculated to act as adequate control of a site this size. BCAA called Bruce Emory to notify him of the fugitive dust emissions. He replied by letter dated February 2, 1999 indicating that Allstar was operating in compliance with the fugitive dust control plan.
The February 1, 1999 fugitive dust emissions formed the basis for BCAA’s issuance of Notice of Violation 19990004 dated February 9, 1999. Notice of Penalty 19990004 was issued March 19, 1999 assessing a $9,000 penalty for violation of WAC 173-400-040(2) and WAC 173-400-040(8).
BCAA personnel visited the Birchfield site on February 4, 1999 and once again observed severe dust movement off the site. The dust was directly impacting the residences on Peachtree Lane and visibility was reduced to zero at times. No control measures were being used during the February 4, 1999 BCAA visit.
As a result of the fugitive dust emissions on February 4, 1999 BCAA issued Notice of Violation 19990005 dated February 25, 1999 for violation of WAC 173-400-040(2) and WAC 173-400-040(8). Allstar was penalized $9,000 for the February 4, 1999 violation in Notice of Penalty 19990005.
Photographs and video tape admitted into evidence demonstrated the significant amounts of fugitive dust originating from the Birchfield Meadows site on October 1, 2, 8, and 13, 1998 and January 14, February 1 and 4, 1999. The photos showed large plumes of dust leaving the site and being deposited both outside and inside neighboring homes and cars.
The impacts experienced by surrounding residents and businesses from the fugitive dust deposited from this site were substantial. People living adjacent to the site were forced to clean their homes and cars constantly to remove the dust. Clothing and shoes were dirty after walking through the yard. Windows could not be opened and children were not able to play in the impacted yards. Dust infiltrated closed doors and windows and accumulated on interior surfaces. Vulnerable senior citizens in a nearby assisted living facility were forced to stay indoors and many experienced difficulty breathing during the dust incidents. In the most extreme cases, hospitalization was required.
Commercial property owners in the area also experienced harm from the dust emissions. An owner of the nearby Peachtree Lane apartment units sustained economic damage from the dust. At least one tenant moved out because of the ongoing dust problems. The owner was forced to replace windows, doors and exterior carpeting. His lawnmower was damaged by the dust in the grass. He was forced to vacuum the flowerbeds to remove dust deposits. A nearby coin operated car wash experienced damage from the fugitive dust as well. The dust destroyed products in their vending machines and caused repeated jamming of the coin machines. Equipment enclosed in a building was even damaged. Customers were unhappy with the situation because dust settled on their newly washed cars before they could drive out of the area. The fugitive dust from this site harmed a large number of people and businesses and in some cases the damage was quite serious.
Allstar has argued that the dust impacting the neighboring properties may have come from other sites in the general area. While there were other potential dust sources in the area, the weight of the testimony demonstrated that the dust impacting nearby homes and businesses on October 2, October 8, October 13, 1998 and January 14, January 15, February 1 and February 4, 1999 came from the Birchfield Meadows site. Numerous witnesses observed the dust coming directly from this site. Photographic and video evidence also showed dust originating from the Birchfield property. The photographic evidence of alternate sources submitted by the appellant was not dated and was of limited probative value as to conditions on the violation dates.
BCAA has adopted a policy document known at the Benton Clean Air Authority Urban Fugitive Dust Policy. (Fugitive Dust Policy) The Fugitive Dust Policy was not adopted in a formal Administrative Procedures Act rulemaking proceeding.
The Urban Fugitive Dust Policy specifically defines the term dust storm:
‘Dust storm’ means a situation where sustained high winds have caused fugitive dust emissions in and around the Tri-Cities area and the wind speed exceeds 20 miles per hour (averaged on the quarter hour over the previous 2 hours). The recorded wind speed will be taken as the average of the measurements from the five BCAA meteorological stations, which are part of the Public Agricultural Weather System (PAWS).
The general policy indicates that if effective control measures are being implemented, an operator will not be required to undertake extraordinary measures during a windstorm:
… except that an owner or operator who was using RACM [reasonably available control measures] effectively or acting to minimize fugitive dust emissions prior to a dust storm shall not be required to institute additional control measures during a dust storm.
Data from the five BCAA meteorological stations which are part of the PAWS did not show exceedance of the dust storm threshold for any of the days in controversy (October 2, 8, 13, 1998, January 14, 15, February 1 and 4, 1999.) There was not a dust storm as that term is defined in the BCAA Urban Fugitive Dust Policy on the citation dates.
Allstar presented data from the Pasco Airport wind gauge showing some periods of wind activity just over the 20 mph level on October 2 and October 8, 1998. Readings from January 14, 15, and February 1 and 4, 1999 showed isolated periods over 20 mph. The Pasco Airport wind gauge is located some fifty feet off the ground and is not as reflective of surface wind conditions as the gauges in the PAWS network. The evidence shows that high winds were present on the days Allstar was cited, but the situation did not meet the definition of a dust storm contained in the BCAA policy.
Allstar had not been effectively using reasonably available control measures to minimize fugitive dust prior to any alleged dust storm. The amount of water being applied to the site was inadequate to control the size of the disturbed surface. Adjustments to apply more water were not made despite the repeated contact from the BCAA. Even if the definition of a dust storm was met, which this Board finds it was not, the appellant failed to meet the prerequisite for exception from the general dust control requirements.
Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such.
From the foregoing Findings of Fact, the Board makes the following:
CONCLUSIONS OF LAW
The Board has jurisdiction over the persons and subject matter of this appeal under RCW 43.21B and RCW 70.94. In the appeal of a civil penalty, the regulating agency must establish by a preponderance of the evidence that a violation occurred and that the penalty is reasonable.
Controlling or prohibiting dust and other particulate emissions is one of the major policies of the Washington Clean Air Act. RCW 70.94.331(2)(c). That policy is further set forth in WAC 173-400-004(2), which provides:
Fallout. No person shall cause or permit the emission of particulate matter from any source to be deposited beyond the property under direct control of the owner(s) or operator(s) of the source in sufficient quantity to interfere unreasonably with the use and enjoyment of the property upon which the material is deposited.
The evidence before the Board demonstrates that the dust emissions leaving the Birchfield Meadows site unreasonably interfered with the use and enjoyment of neighboring residential and commercial properties. Large amounts of dust were deposited on adjacent properties. At one point visibility on nearby streets was impaired to such an extent that fire department personnel took steps to begin watering the site. Nearby residential units were infiltrated by dust that accumulated on open surfaces. Yards were rendered unusable and windows could not be opened. The dust also had impacts on the respiratory health of some persons. The coin operated car wash was harmed through product loss, equipment damage and customer dissatisfaction. The emissions originating on the Birchfield Meadows site on October 2, October 8 and October 13, 1998 and January 14, 15 and February 1 and 4, 1999 violated the standards of WAC 173-400-040(2) by unreasonably interfering with the use and enjoyment of property upon which the material was deposited.
Allstar was also cited for violation of WAC 173-400-040(8)(a), which provides:
The owner or operator of a source of fugitive dust shall take reasonable precautions to prevent fugitive dust from becoming airborne and shall maintain and operate the source to minimize emissions.
The Board has previously recognized that this regulation does not require absolute elimination of dust from construction sites. The high winds and dry soils of Benton County make dust control a serious problem requiring diligence from the construction industry to control emissions. The principle applied to evaluate dust control efforts must be whether reasonable precautions were taken to minimize emissions. While some measures were taken to control dust from this site, they were insufficient to prevent significant dust problems. Application of water was the only strategy identified for control on this fifteen-acre parcel of disturbed ground. A single gravity flow truck and one sprinkler line, which is the most observed at any time on the site, is simply inadequate to the task of dust control for this size of project. When the watering efforts were proving unsuccessful, Allstar took no steps to obtain additional water trucks, water sources or sprinkler equipment. No other types of measures were taken to control the fugitive dust. The efforts Allstar made to control dust fell short of what was reasonably needed to actually prevent or minimize dust emissions from the site. A violation of WAC 173-400-040(8)(a) has been established.
Allstar has taken the position, in writing and in testimony before the Board, that a violation should not be found because the company was complying with its dust control plan. Compliance with a dust control plan does not provide a legal excuse for fugitive emissions in violation of state law. In this case, however, the argument is further flawed by the fact that the dust control plan itself required Allstar to “provide additional equipment and manpower to water.” The plan contemplated that further steps might prove necessary to achieve dust control on the site. Allstar failed to mobilize any additional resources to augment its initial control efforts, despite their obvious failure to minimize emissions or protect neighbors from unreasonable interference.
Allstar has argued that the penalties should be declared invalid in their entirety because they were issued pursuant to the BCAA Urban Fugitive Dust Policy. Since the dust policy was not adopted in accordance with Administrative Procedures Act requirements for rule making, Allstar contends that the policy is illegal and the penalties are null and void. The Board disagrees.
BCAA cited Allstar for violation of WAC 173-400-040(2) and WAC 173-400-040(8)(a). There is no evidence that these regulations were not properly adopted pursuant to the Administrative Procedures Act. Although the Urban Fugitive Dust Policy contains information and guidance on dust control issues, the controlling standard and the source of the cited violations is WAC 173-400.
Allstar claims that its right to constitutional due process has been violated by imposition of the four penalties in this case. The appellant contends that notice, an opportunity for hearing and an unbiased tribunal were necessary before assessment of a fine. The constitutionality of the process for civil penalty assessment under the Washington Clean Air Act has been upheld by the Washington Supreme Court. In Yakima Clean Air v. Glascam Builders, 85 Wn. 2d 255, 534 P. 2d 33 (1975) the court stated:
We hold it is constitutionally permissible to provide for civil or criminal penalties, or both, for the same act. Herein, the procedure does provide for due process. The statute and the ordinance are substantially similar to the effect of service of a summons in a civil action. The person served is given a period of 15 days within which to request a hearing before the Air Pollution Control Hearing Board. In the interim, the collection of the fine does not take place, and the collection is deferred until after the hearing. There is, thus, no deprivation, even temporarily, without a hearing. After that the collection of the fine takes place in a civil action in the superior court. There is adequate opportunity to be heard.
What the statute herein provides is well within the requirements for due process as set forth in Flory v. Department of Motor Vehicles, 84 Wn. 2d 568, 527 P. 2d 1318 (1974); Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970); Cuddy v. Department of Pub. Assistance, 74 Wn. 2d 17, 42 P. 2d 617 (1968).
Appellant has failed to prove a deprivation of due process in the BCAA penalty process.
Contrary to the argument made by Allstar, there is no requirement for an Administrative Procedures Act adjudicatory hearing before assessment of a penalty. A full de novo hearing on the issues relevant to the penalties was afforded through the Pollution Control Hearings Board hearing. The hearing was not an appeal based on a record made below, but a full de novo evidentiary hearing. The penalty and hearing process did not violate the Administrative Procedures Act.
Allstar suggest that BCAA’s “adjudicative proceedings” leading to issuance of the four penalties failed to comply with the common law appearance of fairness doctrine. The BCAA penalty assessment process is not a quasi-judicial proceeding. The Pollution Control Hearings Board process is a quasi-judicial proceeding subject to appearance of fairness. Even if the appearance of fairness doctrine was applicable to the BCAA penalty assessment process, there is insufficient evidence to establish actual bias or even the appearance of bias in the agency’s actions.
Allstar has further argued that the language of WAC 173-400-040(2) and WAC 173-400-040(8)(a) is unconstitutionally vague. WAC 173-400-040(2) prohibits emissions “in sufficient quantity to interfere unreasonably with the use and enjoyment of the property upon which the material is deposited.” A duly adopted regulation, such as WAC 173-400-040(2) is presumed constitutional. The party raising a vagueness challenge bears the heavy burden of proving the regulation’s unconstitutionality beyond a reasonable doubt. Longview Fibre Co. v. Ecology, 89 Wn.App. 627, 632, 949 P. 2d 851 (1998); City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693(1990). The Longview Fibre court recognized the need for some generality in regulations applying to a variety of situations:
A statute or regulation, however, does not have to satisfy impossible standards of specificity. Blondheim v. State, 84 Wn.2d 874, 878, 529 P.2d 1096 (1975). Therefore, a regulation need not provide a person with the ability to predict with “complete certainty” whether it proscribes a particular course of conduct. Keene, 77 Wn. App. at 854. Nor does the use of a vague term within a regulation necessarily render a regulation as a whole impermissibly vague. Keene, 77 Wn. App. at 854. Unless the challenge involves First Amendment concerns, the determination of whether a regulation or statute is void for vagueness is made on an as-applied basis. City of Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996).
Longview Fibre, 89 Wn.App. at 633. Interference with reasonable use and enjoyment of property is very similar to the standard for common law nuisance, which is longstanding and has been the subject of accepted judicial interpretation. Starrow Enterprises v. PSAPCA, PCHB No. 86-26 (1986); Cudahy Co. v. PSAPCA, PCHB No. 77-98 (1977).
The evidence in this case leaves no doubt that the actions of Allstar fall with the prohibition against unreasonable interference with use and enjoyment of the neighboring properties. WAC 174-400-040(2) is not vague as applied to the facts of this case.
WAC 173-400-040(8)(a) requires the owner or operator to “take reasonable precautions to prevent fugitive dust” and to operate so as to “minimize emissions.” The evidence in this case demonstrated that Allstar failed to take reasonable steps to prevent fugitive dust. A single gravity flow water tank and a single sprinkler line could not be expected to provide dust control on fifteen acres of disturbed bare ground. The amount of available water was clearly inadequate. In the face of significant fugitive dust emissions, contact from the BCAA and even notices of violation and penalty, Allstar failed to increase the steps taken to control dust leaving the property. As applied to the facts of this case, WAC 173-400-040(8)(a) is not unconstitutionally vague.
Allstar contends that other dust sources were not penalized or were not penalized as harshly for fugitive dust emissions. The company seeks invalidation of the penalties as a violation of the constitutional doctrine of equal protection. There was insufficient evidence to establish that any other person was causing the same type of serious and repeated fugitive dust emissions as Allstar. In addition, failure to adequately enforce against one violator does not provide a legal defense to another party violating valid prohibitions. The court in Crown Zellerbach v. Labor & Indus., 98 Wn.2d 102, 110, 653 P.2d 626 (1982) held: “Laxity in enforcement as to some is not a defense on equal protection grounds to enforcement against others, absent use of arbitrary or prohibited grounds to determine specific instances of enforcement.” E.g., Plumbers & Steamfitters, v WPPSS, 44 Wn. App. 906, 919, 724 P. 2d 1030 (1986). There is no evidence that BCAA used inappropriate grounds in taking enforcement action against Allstar. BCAA received numerous, repeated and adamant complaints about the dust coming directly off the Birchfield Meadows site. These complaints formed the basis for investigating and subsequently penalizing Allstar and no equal protection violation exists.
The Board looks at three factors in evaluating the reasonableness of a civil penalty: (1) the nature of the violation(s); (2) the prior behavior of the violator; and (3) any remedial actions taken by the violator. Taylor v. SWAPCA, PCHB No. 94-264 (1995).
In this case the nature of the violations was serious. Large quantities of particulate left the Birchfield Meadows site and interfered substantially with the use and enjoyment of properties in the surrounding area. Residents were required to limit their exposure to the outdoors and to clean accumulations of dust in interior areas. Respiratory distress was experienced by vulnerable senior citizens. Driving visibility was diminished to such a degree that fire department personnel felt it necessary to undertake watering efforts with fire department equipment. Businesses also lost income and good will because of the dust deposits. This was not an isolated incident, but a serious ongoing problem affecting a large number of people.
Allstar has no history of dust control violations prior to the incidents in question. One earlier regulatory contact with BCAA occurred during the spring of 1998. This contact demonstrates that Allstar was aware of the existence of dust control regulations and the need to take responsibility for controlling fugitive emissions prior to the Birchfield Meadows project.
Allstar made virtually no effort to take remedial measures in this case. After the October violation, no additional dust control measures were implemented to obtain better control. When problems developed again in January, rather than increasing control efforts, Allstar began a pattern of claiming it was in compliance with its dust control plan. This stubborn adherence to a program that was proving wholly inadequate to the task caused further dust emission incidents that could have been avoided by prompt efforts to apply more water or other control measures. In fact, the dust control plan also required further efforts, if necessary.
Given the pattern of conduct displayed by Allstar and the refusal to increase control efforts after significant impacts on the neighbors became evident, no basis for mitigation of the penalties is presented. The fines assessed by BCAA were $3,000, $9,000, $9,000 and $9,000. The maximum penalty for a single day violation is $10,000. In light of the serious nature of the violations, the knowledge and experience of the contractor and the failure to respond with remedial action, the amount of the penalties assessed are reasonable and should be affirmed.
Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.
From the foregoing Findings of Fact and Conclusions of Law the Board makes the following:
The following Notices of Penalty for violations of WAC 173-400-040(2) and WAC 173-400-040(8)(a) are hereby AFFIRMED:
Notice of Penalty 19980036 $3,000
Notice of Penalty 19990002 $9,000
Notice of Penalty 19990004 $9,000
Notice of Penalty 19990005 $9,000.
DONE this 28th day of November, 2000.
POLLUTION CONTROL HEARINGS BOARD
JAMES A. TUPPER, JR.
ROBERT V. JENSEN
Phyllis K. Macleod
Administrative Appeals Judge