POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
Willapa Bay Grays Harbor Oyster Growers Association and various oyster growers request entry of an order granting summary judgment and dismissal of this matter. The board has reviewed and considered the following pleadings and documents, together with all attachments thereto, filed in support and in opposition to the motion for summary judgment.
1. Respondent Oyster Growers Association's Motion for Summary Judgment.
2. Declaration of Janet Boyd.
3. Declaration of Matthew Edwards.
4. Coast Seafoods Joinder in Motion.
5. Taylor
Resources, Inc.s’, Joinder in Motion.
6. Department of Ecology Joinder in Motion.
7. Appellant's Opposition to Respondent's Motion for Summary Judgment.
8. Respondent Oyster Growers Association's Reply Brief in Support of Motion for Summary Judgment.
9. Appellant's Motion to Compel.
Based on this review and being otherwise fully apprised in the circumstances of this case the board enters the following order.
On or about June 9, 2000, the Willapa Bay Oyster Growers Association filed an application with the Department of Ecology for a Water Quality Certification or Modification. The application sought a temporary modification of water quality standards to apply the pesticide Carbaryl to control burrowing shrimp. The application was filed on behalf of eighteen oyster growers in Willapa Bay and Grays Harbor. The application described for each company, the area of their oyster beds, the acreage, township and range, as well as the relative longitude and latitude for each bed. The application additionally listed for each company the total acres applied for and the acreage within an 800-acre limit for treatment.
An Environmental Checklist prepared in accordance with WAC 197-11-960 and the State Environmental Policy Act (SEPA), RCW 43.21C.110, accompanied the application. The checklist identifies the proposed timing and schedule for treatment. The document references a memorandum agreement between the Department of Ecology and growers association. The Department of Ecology issued a determination of significance that the proposed treatments would likely have significant adverse impact on the environment under RCW 43.21C.033. For the purposes of environmental review under SEPA the department adopted existing final environmental impact and final supplemental environmental impact statements that had been published on the use of pesticides to control ghost and mud shrimp in Willapa Bay and Grays Harbor. Adoption of existing environmental documents is authorized under RCW 43.21C.034.
Between July 5 and 7, 2000, the Department of Ecology issued thirteen orders to oyster growers in Willapa Bay conferring temporary modification of water quality standards to allow treatment of oyster beds with Carbaryl. Approximately 600 acres of tidelands were authorized for treatment under the orders. The orders set forth general conditions as well as conditions on pre-treatment and day-of-treatment. The pre-treatment conditions include public notice to adjacent property owners, published notice and signage, minimum shrimp burrowing criteria for treatment, and limitations on treating beds where oysters are within one year of harvest. The pre-treatment conditions additionally require notice 24 hours prior to treatment to the U.S. Fish and Wildlife Service, the Department of Ecology and interested parties on a list maintained by the Department of Ecology. Finally the pre-treatment conditions require a post-treatment report to the Department of Ecology summarizing the results of the treatment.
The day-of-treatment conditions require that the applicator comply with all label instructions for the pesticide. The conditions provide that where the label requirements and conditions imposed by the department differ, the more stringent requirement will apply. The conditions require staking of oyster beds to be treated, a company representative to be present at the site at the time of treatment, only one application of Carbaryl per bed, an application rate of no more than 8 pounds of active ingredient per acre, limitation on application to beds uncovered by out going tide and no later than 30 minutes after low tide, and an application setback from sloughs, channels or oysters within one year of harvest of 200 feet for aerial application and 50 feet for hand application. The conditions additionally limit applications if wind speeds exceed 10 miles per hour. The conditions also require the applicator to maintain a copy of the order on site and maintain an application record. The application records must be available to the Department of Ecology the same day of treatment. The application record must also be mailed to the Department of Ecology with the post-treatment report.
Counsel for the growers association represents that all treatments under the order were completed prior to August 3, 2000. The orders expired under their own terms on August 31, 2000. In support of the motion for summary judgment the growers association submitted the declaration of Janet Boyd, a water quality inspector employed by the Department of Ecology. Ms. Boyd is cited in the subject orders as the recipient of the application records and post-treatment reports. Ms. Boyd states in her declaration that she has had responsibility for reviewing and monitoring similar orders in Willapa Bay since 1996. According to Ms. Boyd, she monitored applications under the orders on July 5, 11, 15 and 16, 2000. Her written reports are attached to her declaration.
On August 3, 2000, the Ad Hoc Coalition represented by Fritzi Cohen and Larry Warnberg filed a notice of appeal of the thirteen orders issued for Willapa Bay. The grounds for appeal are stated as follows:
1) After spray application at low tide for burrowing shrimp control, the pesticide carbaryl may drift offsite with the incoming flood tide, contaminating adjacent shellfish growing areas, including oyster beds of the appellants.[1]
2) The regulatory agencies that issue and monitor the permits for carbaryl have not adequately monitored applications of the pesticide. These agencies include WSDOE, WSDA and USEPA.
3) Alternate non-chemical organic oyster farming methods are available.
The notice of appeal provides the following statement:
Pesticide drift has been documented by scientists Carol Weiskopff from WSU, Cynthia Stonik from WSDOE, and Bruce Kauffman from WSF&W. On July 11 and 12 carbaryl was applied adjacent to the Nahcotta Oyster Farm, drifting with the incoming tide across marketable oyster beds. Dead shrimp, crab, fish and worms were observed at least 1,000 feet downstream from the sprayed area. No monitor from WSDOE was available to observe the pesticide drift, but Bruce Kauffman observed the extent and severity of contamination. Other evidence for poor monitoring by State agencies includes observations of spraying in excess of 10 mph wind, spraying more than 30 minutes after low tide, spraying adjacent to streams and channels, failure by growers to mark treated beds, failure to monitor harvesting from beds that are restricted for one year after carbaryl treatment, and spraying clam beds in addition to oyster beds.
And, finally, the notice of appeal set forth the following statement of relief sought: "compensation for economic loss due to suspended harvest, attorneys fees and no carbaryl permits in the future."
A pre-hearing conference in this matter was held on October 4, 2000, to clarify the jurisdiction of the board and scope of review available on the subject orders. As a result of that hearing and a scheduling order issued by the board, an Amended Notice of Appeal was filed on October 16, 2000. The amended notice of appeal requests entry of an order "that DOE and the Respondents did commit or allow significant violations of permit and EPA pesticide label requirements, as alleged." The amended pleading additionally requests that future permits for carbaryl be "conditioned by the findings and judgments of the PCHB."
A second prehearing conference was held on October 27, 2000. As a result of that conference a Prehearing Order was issued setting forth the following issues for consideration by the board:
1. Did the Department of Ecology (Ecology) properly issue the subject orders granting temporary modification of the water quality criteria for a portion of Willapa Bay (Permits) if it did not have adequate resources to monitor and enforce the terms of the Permits?
2. Was Ecology required to give a fourteen-day notice before issuing the Permits pursuant to WAC 197-11-340(2)(c)?
3. Was the application on behalf of Larry Hendrickson consistent with applicable requirements for a temporary modification of water quality standards?
4. Did Ecology properly issue the subject Permits where it had not adopted and implemented an Integrated Pest Management Plan for Burrowing Shrimp?
5. Is this appeal moot because all the spraying has already taken place, so that the board lacks jurisdiction?
6. Does the board have jurisdiction over enforcement or implementation of the subject Permits, given that Ecology has issued no enforcement orders?
7. Does the board have jurisdiction to hear the claims asserted by the appellants or to grant the relief that they are requesting in this matter?
Pursuant to the rules of the board, the issues identified for the hearing control the subsequent course of an appeal, and are the only issues to be tried at the hearing, unless modified for good cause by subsequent order of the board or the presiding officer. WAC 371-08-435.
The oyster growers association filed its motion for summary judgment on February 2, 2001. The motion was supported with the declaration of Janet Boyd previously described, as well as the declaration of Matthew Edwards authenticating the application, environmental checklist, SEPA determination and notice of adoption and subject orders. Appellant's Opposition to Summary Judgment was filed on February 14, 2001. The opposition was not accompanied by any affidavits or declarations.
The opposition asserts, in part, that summary judgment is inappropriate because appellant failed to receive responses to discovery requests. Based on this assertion the board considered the Appellant's Motion for Compel and Appellants First Amended Interrogatories and Requests for Production. This set of discovery requests sets forth ten interrogatories. The first seven interrogatories restate what is represented to be "mandates" from the final environmental impact statement adopted by the Department of Ecology for the purposes of its environmental review. The so-called mandates all appear to be conditions of the subject orders. The first interrogatory asks generally if there was compliance with the conditions in the subject orders. The next six interrogatories restate specific conditions in the orders. For each of these interrogatories the appellant asks, "Did you comply with this mandate?" Interrogatory No. 8 states that the preferred alternative to treatment in the supplemental final environmental impact statement is "The Integrated Management Strategy." The interrogatory then asks whether the oyster growers adopted the preferred alternative. Interrogatory No. 9 asks for an explanation if the preferred alternative was not adopted. Interrogatory No. 10 asks for information regarding Carbaryl spraying in Willapa Bay that was not authorized by permit. The requests for production of documents each ask for documents relating to responses to the interrogatories.
The growers association reply brief in support of the summary judgment motion appended a copy of the Burrowing Shrimp Integrated Pest Management Memorandum of Agreement dated January 30, 2001. The agreement is signed by the Department of Ecology and growers association as well as other parties.
Based on this review, the board enters the following ruling
The purpose of a summary judgment motion is to avoid a useless trial. In responding to the summary judgment the appellant had the burden of identifying any statute or regulation that respondents may have violated, the facts supporting the alleged violation established by affidavit or declaration, together with some analysis explaining how the facts in the case support a finding that there has been a violation of applicable law. RCW 43.21C.330; WAC 371-08-300; CR 56; Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216 (1989). To defeat summary judgment the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Ad Hoc Coalition for Willapa Bay v. Department of Ecology, PCHB No. 97-024, at 2 ( 1997); quoting LaPlante v. State, 85 Wn.2d 154 (1975).
Appellant has an affirmative duty
to respond to a motion for summary judgment with testimony under oath based on
personal knowledge that establishes a genuine issue of material fact. CR 56(e), adopted by the this board under
WAC 371-08-300, requires:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(Emphasis added.)
The board is cognizant that Appellant is not represented by an attorney. The board's rules allow it to suspend procedural requirements where a party is not represented by counsel to avoid manifest injustice. WAC 371-08-385. It is not proper to do so in this case on such a fundamental requirement. The summary judgment standard is not rigorous. The board is required to construe all facts most favorably to the non-moving party and deny judgment if there are any genuine issues of material fact. CR 56(c). The Appellant is aware of practice before the board. See Ad Hoc Coalition for Willapa Bay v, Department of Ecology, PCHB 97-024 (1997). In this specific case some effort was made through pre-hearing conferences to counsel the Appellant on the legitimate scope of an appeal before the board and the practice of the board. The fact that the Appellant failed to file any declarations or affidavits in opposition to summary judgment is entitled to no special consideration by the board.
Under these standards we address each issue as set forth in the Prehearing Order.
Issue No. 1: Did the Department of Ecology properly issue the subject orders granting temporary modification of the water quality criteria for a portion of Willapa Bay (Permits) if it did not have adequate resources to monitor and enforce the terms of the Permits?
Respondents have shown that the Carbaryl applications were monitored under the conditions contained in the subject orders through notice requirements, treatment reports and application reports. The respondents have also shown that a Department of Ecology water quality inspector attended several applications and prepared written reports on her observations.
Appellant responds that the water quality inspector's report show "minimal monitoring." Appellant further contends that the inspector's declaration "fails to identify significant pesticide drift and ecosystem impacts that have occurred." Appellant also cites to a draft report dated February 7, 2001 titled Carbaryl Concentrations in Willapa Bay and Recommendations for Water Quality Guidelines. The Appellant has not substantiated its claim of minimal monitoring with any factual information. The appellant has not presented the board with a shred of evidence that there has been significant pesticide drift. And, the statements from the recent report cited in the opposition brief have not been authenticated in any way.
Appellant contends that it has not been able to respond to summary judgment because the respondent oyster growers have not timely answered interrogatories. The need for discovery is legitimate grounds for defending a summary motion under CR 56(f). However, it is incumbent upon the non-moving party asserting this provision of the summary judgment rule to establish by affidavit why discovery is necessary. In general, the need for discovery must be based on a legitimate contention that the information sought is peculiarly within the knowledge of the party against whom discovery is sought. In this instance the issue is the adequacy of Department of Ecology resources to monitor pesticide applications. The appellant's interrogatories are focused on evidence that the growers might have as to violations of the conditions in the subject orders. There is no explanation, however, as to why the Appellant is unable to develop sufficient information to defeat summary judgment. On this issue respondents are entitled to judgment as a matter of law.
2. Was Ecology required to give a fourteen-day notice before issuing the Permits pursuant to WAC 197-11-340(2)(c)?
Appellant concedes this issue. Respondents are therefore entitled to judgment as a matter of law.
3. Was the application on behalf of Larry Hendrickson consistent with applicable requirements for a temporary modification of water quality standards?
The Larry Hendrickson Oyster Company was issued Order No. DE WQSR 1356 for the application of Carbaryl to three acres of oyster grounds near Nahcotta. Mr. Hendrickson and his oyster farm were listed in the application. Appellant contends that the fact Mr. Hendrickson was not a member of the growers association demonstrates a pattern of inadequate monitoring by the Department of Ecology. The application was clearly filed on behalf of specific individuals and companies. The application was clearly intended to cover specific parcels and acreage. And it is clear that the orders were issued to the individuals and companies. There is no indication that that this application procedure and review violated any statute or regulation. The respondents are therefore entitled to judgment as a matter of law.
4. Did Ecology properly issue the subject Permits where it had not adopted and implemented an Integrated Pest Management Plan for Burrowing Shrimp?
The board assumes for the purpose of summary judgment that there was no Integrated Pest Management Plan adopted at the time the subject orders were issued. It appears from the record that the growers association, Department of Ecology,and other parties entered into a memorandum agreement and plan on January 30, 2001, setting forth the timeline for development and adoption of an Integrated Pest Management Plan. Appellant has failed to come forward with any basis or evidence that would support vacating the subject orders based on these facts. The Appellant has not cited any provision in applicable statute or regulatory law that requires Integrated Pest Management Plan prior to issuing the subject orders before the board. The respondents are therefore entitled to judgment as a matter of law.
5. Is this appeal moot because all the spraying has already taken place, so that the board lacks jurisdiction?
A matter is moot if a court can no longer provide effective relief. City of Moses Lake v. Grant County Boundary Review Board, __ Wn. App. ___ Slip Opinion No, 19295-4-III (January 16, 2001), citing Orwick v. Seattle, 103 Wn.2d 249, 253 (1984). In Moses Lake the court rejected a mootness argument that a matter was moot even though a local government had already completed a disputed annexation. At issue was a question of jurisdiction before a boundary review board. The local government prevailed in Superior Court on the jurisdiction of the board and proceeded with an annexation prior to the hearing before the Supreme Court. The Court rejected this argument where a reversal would put the merits of the annexation before the boundary review board for consideration.
Our courts have also recognized a public interest exception to the doctrine of mootness. Under this exception, a matter is not moot where the issue is of a public interest, an authoritative determination is desirable to provide future guidance to public officers and the issue is likely to recur. Hart v. Department of Social and Health Services, 111 Wn.2d 445, 448 (1988). The exception should not be invoked unless a decision will provide genuine guidance in situations that are likely to recur. 111 Wn.2d at 451.
The public interest exception would apply to the facts in this case. It appears that Carbaryl has been employed for many years in Willapa Bay to control burrowing shrimp. It also appears from the memorandum agreement submitted with the growers association’s reply brief that the parties anticipate future orders authorizing the use of Carbaryl. If the board were to apply the mootness doctrine, there would essentially be no effective right to appeal the orders at issue. In this case the orders were issued between July 5 and 7, 2000. Some of the Carbaryl applications were made on that day and the immediately following days. It is very likely that interested parties would not even receive a copy of the order prior to the pesticide applications. Moreover, applying the public interest exemption is the only means for a party to address the consistency of the subject orders with applicable law. On this issue the respondents are not therefore entitled to judgment as a matter of law and the summary judgment motion on this issue will be denied.
6. Does the board have jurisdiction over enforcement or implementation of the subject Permits, given that Ecology has issued no enforcement orders?
This is an issue of some importance to this case. The Appellant's initial notice of appeal emphasized alleged damage to the Nahcotta Oyster Farm and Moby Dick Motel and Oyster Farm. The appeal sought, in part, compensation for economic loss and attorney's fees. The amended notice of appeal sought, in part, a determination that the "Respondents did commit or allow significant violations of the permit and EPA pesticide label requirements." From this it appears that the Appellant is primarily pursuing a private interest in recovering alleged damages and an enforcement action.
The jurisdiction of the board derives from RCW 43.21B.110(1)(b). The board has authority by statute to review the subject orders for consistency with applicable law and regulations. The board is, however, a creature of statute and is only vested with that authority expressly granted or necessarily implied by statute. Seattle v. Department of Ecology, 37 Wn. App. 819, 823 (1984). The board is not vested with general jurisdiction to hear damage claims or initiate enforcement actions. The subject orders are not open to review under RCW 43.21B.110(1)(b) on the sole grounds that there have been violations. The authority to bring an enforcement action rests with the Department of Ecology under RCW 90.48.120 and 144. Violations may also be pursued by private parties under the citizen suit provisions in section 505 of the federal Clean Water Act, 33 U.S.C. § 1365. And certainly, private parties may avail themselves of the court system to recover economic and property damages.
The board is not able to resolve this issue as the matter now stands. The Appellant has failed in essence to respond to the growers association’s motion for summary judgment. At best the board can rule that it has jurisdiction over this appeal to the extent that it is asked to review the consistency of the subject permit with applicable law. To the extent, however, the appeal is maintained as a means to initiate an enforcement action, the board does not have jurisdiction.
7. Does the board have jurisdiction to hear the claims asserted by the appellants or to grant the relief that they are requesting in this matter?
The amended notice of appeal asks the board to find that there were violations and that future permits should be conditioned by the findings and judgment of the board. The resolution to this issue is the same as for the preceding issue. To the extent that the Appellant is seeking to initiate an enforcement action, the board lacks jurisdiction. Thus, it is not a proper form of relief to ask this board in the first instance to find and conclude that there were violations of the conditions in the subject orders or applicable label requirements. The board does, however, have jurisdiction and authority to issue findings of fact and conclusions of law on the consistency of the orders with applicable law. RCW 43.21B.100. This authority is deemed to be in the nature of or include authority to render declaratory judgments. Dioxin/Organochlorine Center v. Department of Ecology, 119 Wn.2d 761, 777 (1992). While the rulings of the board do not have the force of an injunction governing future modifications of water quality standards that the department might issue, D/O Center, 119 Wn.2d at 777, our rulings may provide guidance to the department in its future deliberations. The board cannot reach the merits of the issue because Appellant has failed to adequately respond to the summary judgment motion. The validity of the subject orders has not been challenged by any evidence or reference to applicable law.
In summary, the respondents are entitled to summary judgment on Issues 1 through 4 as set forth in the Prehearing Order. Summary judgment is denied as to Issues 5 through 7. This ruling resolves the substantive issues before the board therefore the respondents are entitled to an order of dismissal.
ORDER
IT IS HEREBY ORDERED that summary judgment is GRANTED to the respondents on Issues 1 through 4 of the Prehearing Order and DENIED on Issues 5 through 7; and
IT IS FURTHER ORDERED that the appeal is DISMISSED with prejudice.
DATED this 14th day of March, 2001.
POLLUTION CONTROL HEARINGS BOARD
JAMES A. TUPPER, JR., Presiding
ROBERT V. JENSEN
KALEEN COTTINGHAM
PCHB 00-115 Summary Judgment
[1] Ms. Cohen's address is listed on the notice of appeal as the Moby Dick Hotel and Oyster Farm. Mr. Warnberg's address is listed as the Nahcotta Oyster Farm.