BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

HELPING HOMES DEVELOPMENT CORP., and RAY GOSNEY; JOHN WHEATLEY and NATE DAVIS,

 

                        Appellants,

 

            v.

 

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY and CITY OF KALAMA,

 

                        Respondents.

 

 

 

 

 

PCHB NO. 02-079 & 02-080

 

ORDER GRANTING SUMMARY JUDGMENT

 

            Appellants, Helping Homes Development Corp. and Ray Gosney filed an appeal (PCHB No. 02-079) challenging an Agreed Order entered into between the City of Kalama (City) and the Department of Ecology (Ecology) relating to water quality issues at the City’s wastewater treatment plant.  Appellants John Wheatly and Nate Davis also filed a challenge to the agreed order (PCHB No. 02-080).  The cases have been consolidated for hearing by prior Board order. The City and Ecology have both filed motions for summary judgment seeking dismissal of the appellants’ cases.  In considering the motions the Board reviewed the following documents:

1.                  City of Kalama Motion for Summary Judgment.

2.                  Declaration of Carol Morris in Support with attachments.

3.                  Ecology Motion and Memorandum in Support of Motion for Summary Judgment.

4.                  Appellants’ Response to City’s Motion for Summary Judgment.

5.                  Ecology Reply in Support of Summary Judgment.

6.                  City Reply Memorandum.

7.                  Declaration of Carl McCrary in Support of Motion.

8.                  Appellant’s Motion to Amend Caption.

9.                  Appellants’ Motion to File Supplemental Response.

10.              Appellants’ Supplemental Response.

11.              Declaration of James Sellers.

12.              Supplemental Declaration of John Wheatly.

13.              City’s Response to Appellants’ Motion to Amend.

14.              Ecology Letter Joining Response.

Based upon the records and files herein and the submissions of the parties, the Board enters the following decision.            

Facts

            The City of Kalama has experienced difficulty complying with the applicable water quality standards and National Pollution Discharge Elimination System (NPDES) permit conditions for operating its wastewater treatment facility.  Rather than simply issuing an order or assessing a fine for the ongoing violations, Ecology and the City entered into an Agreed Order (Agreed Order No. DE02WQSR-3586) containing a number of conditions to address the City’s violations.  The Agreed Order states it is issued pursuant to RCW 90.48.120 and outlines a course of conduct that would ultimately culminate in construction of a new sewage treatment


plant.  The Agreed Order contains a provision indicating the City will impose a prohibition on new sewer service connections until remedial actions are complete.  After both parties executed the Agreed Order, the City passed an ordinance prohibiting further sewer hookups to the existing system. 

            The appellants are owners of property being developed for residential uses.  Prior to the moratorium on sewer hookups, they obtained preliminary plat approval for their sites.  At the time preliminary plat approval was granted all parties believed that sewer service to the lots would be provided by the City of Kalama.  Since the Agreed Order was executed and the moratorium ordinance passed, the appellants are concerned their investments will be rendered worthless because sewer service will not be available to potential purchasers of the lots.  These appeals were filed challenging the Agreed Order.

Analysis

Summary judgment is a procedure available to avoid unnecessary trials on formal issues that cannot be factually supported and could not lead to, or result in, a favorable outcome to the opposing party.  Jacobsen v. State, 89 Wn. 2d 104, 569 P.2d 1152 (1977).  Summary judgment is designed to eliminate trial if only questions of law remain for resolution.  The party moving for summary judgment must show there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.  Magula v. Benton Franklin Title Co., Inc., 131 Wn. 2d 171, 182; 930 P. 2d 307 (1997). 

 

            The City and Ecology have cited three separate grounds for complete dismissal of the appellants’ cases and have proffered additional arguments seeking partial dismissal.  Initially, the moving parties contend the Agreed Order is not the type of order that can be appealed to the Pollution Control Hearings Board.  RCW 43.21B.110(1)(b) grants the Board jurisdiction to review orders issued pursuant to RCW 90.48.120.  While Ecology is claiming the Agreed Order is not an order issued pursuant to RCW 90.48.120, that contention is belied by the fact that the order states on its face that it is issued pursuant to RCW 90.48.120.  Ecology’s strained interpretation of the nature of this agreement is not persuasive.  Ecology is charged with the responsibility for enforcing the Clean Water Act through necessary action including issuing enforcement orders.  Ecology’s decision to enter into a stipulated or agreed order, rather issuing a more typical unilateral enforcement order, does not change the nature of the action and preclude parties with proper standing from filing appeals to the Board.

            The Ecology motion further argues the appellants lack standing to bring these actions.  In order to establish standing to obtain review of agency action, a person must establish three conditions:

1.                  The agency action must prejudice or be likely to prejudice the person;

2.                  The person’s asserted interest must be among those that the agency was required to consider when it engaged in the challenged agency action; and

3.                  A judgment in favor of the person would substantially eliminate or redress the prejudice to the person that is caused or likely to be caused by the agency action.

RCW 34.05.530.  City of Normandy Park v. Ecology, PCHB No. 97-180 (1998).

            In this case, the appellants assert the Agreed Order condition imposing a sewer hookup moratorium will harm their investment interests.  The factual record regarding the nature and extent of any such injury is disputed and not properly the subject of summary judgment. 

            The appellants’ interest in developing their property to make a profit is a legitimate interest, but it is not the type of interest Ecology is required to evaluate in issuing an order to enforce compliance with the Clean Water Act.  When it engages in enforcement activity, Ecology evaluates the actions of persons discharging pollutants to waters of the state and protects the larger public interest in clean water.  As private landowners, the appellants have no special status under the Clean Water Act, and their business concerns are not within the zone of interests Ecology is charged with protecting.  To establish standing in this case, the appellants would have to show their interests were within those the agency was required to evaluate and protect.  Ironworkers Local 29 et al. v. Ecology and City of Goldendale, PCHB No. 01-007 (2001).  The appellants here have not sustained the burden of making the required showing and therefore lack standing to bring this action.

            Appellants also fail to meet the third criteria for standing, which requires that the appellant be situated so that a judgment in its favor would redress the prejudice caused by the agency action.  In this case the City has passed an ordinance imposing a moratorium on further hookups to the existing sewer system.  Even if the Board ruled in favor of the appellant and invalidated the Agreed Order, the City would still have an ordinance prohibiting further sewer


hookups.  The City cannot be forced to repeal the moratorium ordinance by an order of the Pollution Control Hearings Board.  As a result, a favorable ruling would not have the effect of eliminating any prejudice to the appellants since the moratorium would still be in effect until the City chose to overturn it. 

            The same lack of effective remedy supports the moving parties’ argument that the case is moot.  In order to avoid a mootness challenge the appellant must be able to show the Board can grant meaningful relief.  Orwick v. Seattle, 103 Wn. 2d 249, 252-3, 692 P. 2d 793 (1984);  City of Moses Lake v. Grant County Boundary Review Bd., 104 Wn. App. 388, 391 (2001); Marlin Hutterian Brethren v. Ecology, PCHB No. 02-061 (Order Granting Dismissal, 2002).  Since the appellants’ alleged harm arises from the existence of the City’s sewer hookup moratorium ordinance and since the Board is unable to direct the City’s action regarding the ordinance, meaningful relief is not available through this proceeding.  The matter is properly considered moot and subject to dismissal.[1] 

            Based upon the foregoing analysis the Board enters the following


ORDER

            Summary judgment dismissing the appellant’s claims in PCHB No. 02-079 and PCHB No. 02-080 is granted and the appeals are hereby DISMISSED.

            Done this 31st day of December 2002.

 

POLLUTION CONTROL HEARINGS BOARD

 

                                                            ROBERT V. JENSEN

 

                                                            KALEEN COTTINGHAM

 

                                                            WILLIAM H. LYNCH

 

 

Phyllis K. Macleod

Administrative Appeals Judge, Presiding                                               



[1] The Board’s disposition of the case on standing and mootness grounds renders a decision on constitutional arguments and associated jurisdictional challenges unnecessary.