BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

 

BAKER COMMODITIES INC.,

                       

                        Appellant,

 

            v.

 

SPOKANE COUNTY AIR POLLUTION CONTROL AUTHORITY,

 

                        Respondent.

 

 

 

 

 

 

            PCHB NO. 03-015

 

            ORDER GRANTING             SUMMARY JUDGMENT

 

 

 

 

           

            This matter comes before the Pollution Control Hearings Board on a motion from Spokane County Air Pollution Control Authority (SCAPCA) seeking dismissal of Baker Commodities’ (Baker) appeal of a $45,950 civil penalty.  SCAPCA contends it is entitled to dismissal because the appeal was filed with the Board one day late and therefore the Board does not have jurisdiction to hear the appeal. 

The Board was comprised of Robert V. Jensen, chair, Kaleen Cottingham and William H. Lynch.  Administrative Appeals Judge, Kay M. Brown presided for the Board.  Patrick M. Risken, with Evans, Craven & Lackey represented SCAPCA.  Stanley M. Schwartz, with Witherspoon Kelley, Davenport & Toole, represented Baker.   

The Board reviewed and considered the following pleadings, which were submitted by the parties:

(1)                                       SCAPCA’s Motion to Dismiss, Memorandum in Support of Dismissal, Declaration of Records Custodian Barbara Nelson, and Exhibits 1 through 3;

(2)                                       Baker’s Memorandum in Opposition to Respondent’s Motion to Dismiss Civil Penalty No. 7030 with attached Superior Court Memorandum Decision, Declaration of Stanley M. Schwartz with Attachment A, Affidavit of Laurie Eveland with attachment, and Affidavit of Stacy A. Bjordahl with attachment; and

(3)                                       SCAPCA’s Responsive Memorandum and Declaration of Deirdre Fitzgerald.

Having fully considered the record in this case and being fully advised, the Board enters the following ruling.

FACTUAL BACKGROUND

On December 17, 2002, Baker received a notice of penalty in the amount of $45,950 from SCAPCA.  Baker served SCAPCA with notice of its appeal on January 15, 2003.  It did not file its appeal with the Board, however, until January 17, 2003.  The undisputed facts establish Baker delivered its appeal to Federal Express on January 15, 2003 with instructions for over night delivery to the Board on January 16, 2003.  Due to a mechanical problem, Federal Express did not deliver the Notice of Appeal to the Board until January 17, 2003.

SCAPCA filed this motion to dismiss on the grounds Baker’s appeal was filed one day past the 30-day appeal period authorized by RCW 43.21B.300(2), and therefore the Board lacks jurisdiction to hear this appeal.  Baker concedes the appeal was filed with the Board one day late.  It argues, however, the appeal should not be dismissed because Baker substantially complied with the filing requirements, because good cause exists for the late filing, and because the penalty should have been combined with the other penalties issued for this continuing violation into one notice, which would have required only one appeal to the Board.

ANALYSIS

 

Summary judgment is a procedure available to avoid unnecessary trials where formal issues cannot be factually supported and cannot lead to, or result in, a favorable outcome to the opposing party.  Jacobsen v. State, 89 Wn. 2d 104, 108, 569 P.2d 1152 (1977).  The summary judgment procedure 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).  Thereafter, the nonmoving party must set forth specific facts evidencing a genuine issue of material fact.  Id.  Because the motion to dismiss in this case includes factual attachments, it is properly considered as a motion for summary judgment. Mueller v. Miller, 82 Wn.App. 236, 246, 917 P.2d 604 (1996).  This case is appropriate for summary judgment because there are no disputed facts material to the legal issue of the Board’s jurisdiction.

A.  Jurisdiction

            RCW 43.21B.300(2) provides:

Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.

 

            WAC 371-08-335(3) expressly states, “An appeal is filed with the board on the date the board actually receives the notice of the appeal, not the date the notice is mailed.”  In addition, the same rule provides “for the Board to acquire jurisdiction . . . filing must be timely accomplished.”  WAC 371-08-335(1).

B.  Substantial Compliance and Good Cause Exception            

In this case, it is undisputed the appeal was not filed with the Board until the thirty-first day after receipt of the penalty by Baker.  The Pollution Control Hearings Board is a quasi-judicial entity with only that jurisdiction provided by statute or as necessarily implied.  See Tuerk v. Washington Dept. of Licensing, 123 Wn.2d 120, 124, 864 P.2d 1382 (1994).  The Board lacks jurisdiction to hear an appeal that is not filed within the time period prescribed by statute.  Here, the applicable statute requires the appeal to be filed within 30 days of receipt of the penalty.  RCW 43.21B.300(2).  Therefore, the Board lacks jurisdiction over this untimely appeal.  Thomas v. Yakima Regional Clean Air Authority, PCHB No. 02-047(2002). 

Baker contends it substantially complied with the filing requirements, and therefore the Board does have jurisdiction.  In support of its argument it relies heavily on Graves v. Vaagen Brothers Lumber, 55 Wn. App. 908, 781 P.2d 895(1989).  Graves involved a late filing of an appeal from a Board of Industrial Insurance Appeals Board decision to Superior Court.  The Court held the late filing was in substantial compliance with the statute, but emphasized its decision was limited to situations where it was the appellate jurisdiction of the court being invoked.  55 Wn. App. at 913.  Graves is inapplicable to the issue of this Board’s jurisdiction, since this Board is not acting in an appellate capacity. 

Baker also argues the courts have created a “good cause” exception for late filing which should be recognized here.  The cases cited by Baker in support of this argument, however, involve statutorily imposed deadlines where the statutes themselves provide for waiver of the deadline upon a showing of good cause.  See State v. Dearbone, 125 Wn.2d 173, 177, 883 P.2d 303 (1994)(statutory provision required a notice of special sentencing be filed within thirty days absent a showing of good cause for an extension); Devine v. Employment Security, 26 Wn. App. 778, 781, 614 P.2d 231 (1980)(statutory provision stated appeal must be filed within 30 days but allowed a waiver of the deadline for good cause).  RCW 43.21B.300(2) does not contain an exception for good cause.  Therefore, the cited cases do not provide authority for the Board to waive the jurisdictional timeline for appeal.

C.  Continuing Violation

Baker asserts the Board has jurisdiction because the penalty at issue here was one of a series of penalties issued by SCAPCA for the same alleged offenses occurring on multiple days.  SCAPCA chose to issue the multiple penalties in separate notices.  Baker contends SCAPCA should have issued all of the penalties in one notice because they involved a continuing violation, and then Baker would only have had to file one appeal.  Further, Baker argues because the Board consolidated the appeals, the act of consolidation implies the penalties should have all been issued in one notice, not multiple notices.

The Board is not persuaded these arguments confer jurisdiction over the untimely appeal of this penalty.  RCW 70.94.431, the statutory provision authorizing the issuance of penalties for violations of the Washington Clean Air Act, states, “in case of a continuing violation, each day’s continuance shall be a separate and distinct violation.”  RCW 70.94.431(1).  Based on this provision, SCAPCA has the authority to issue separate penalties for each day of a continuing violation.  It is within SCAPCA’s discretion whether to issue the separate penalties all in one notice or to issue separate notices.  Here, SCAPCA issued separate notices.  Therefore, each notice must be appealed according to the statutory requirements of RCW 43.21B.300(2).  The fact the separate appeals were consolidated by the Board for purposes of convenience and efficiency does not change this underlying jurisdictional requirement.

It is unfortunate an overnight delay, which was not the fault of Baker and which did not cause prejudice to SCAPCA, should result in the dismissal of Baker’s appeal.  Because timely filing is jurisdictional, however, the Board has no option but to dismiss this appeal.[1]  Ester v. Puget Sound Air Pollution Control Agency, Order Dismissing Appeals, PCHB 88-173 & 88-174 (Nov. 29, 1989). 

ORDER

Summary judgment is granted to SCAPCA, and this appeal is dismissed.

DATED this 27th day of June 2003.

 

POLLUTION CONTROL HEARINGS BOARD

 

                                                                        ROBERT V. JENSEN, Chair

 

                                                                        KALEEN COTTINGHAM, Member

 

                                                                        WILLIAM H. LYNCH, Member

 

Kay M. Brown

Administrative Appeals Judge, Presiding


[1] In order to make filing as convenient as possible the Board has adopted a rule allowing filing by facsimile of documents ten pages or less.  WAC 371-08-305(5).