POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

JERRY LEE DIERKER,

 

                        Appellant,

 

            v.

 

STATE OF WASHINGTON,

DEPARTMENT OF ECOLOGY and

DEPARTMENT OF HEALTH,

 

                        Respondents.

 

 

 

 

 

 

   

 

 

 

 

 

 

 

PCHB 03-057

 

ORDER DENYING STAY

 

            On April 10, 2003, Jerry Lee Dierker filed an appeal with the Pollution Control Hearings Board (“Board”), contesting the Department of Ecology’s (“Ecology”) issuance of coverage under National Pollutant Discharge Elimination System (“NPDES”) Permit No. WAG992000 to the Department of Health (“Health”) for mosquito control activities and requesting a stay of the effectiveness of the coverage pending the ultimate hearing on the matter.  He filed additional documents supplementing his original filing on April 14, 2003 and May 1, 2003.  On May 20, 2003, Health and Ecology both filed briefs and declarations in response to the request for stay.  On May 27, 2003, Mr. Dierker filed a reply to Health and Ecology’s briefing.  On June 12, 2003, the Board sent out a letter requesting additional information from the agencies.  A response was filed by Mr. Dierker on June 16, 2003, and by Health and Ecology on June 20, 2003.

            Mr. Dierker represented himself as the appellant.  Thomas J. Young, Assistant Attorney General, represented Ecology.  Lilia Lopez, Assistant Attorney General, represented Health. 

Kay M. Brown, Administrative Appeals Judge, presided over the matter for the Board.  The Board, comprised of Robert V. Jensen, chair, Kaleen Cottingham and William H. Lynch, considered the motion on the record and the pleadings submitted.  The pleadings filed were:

1.      Appeal filed by Mr. Dierker on April 10, 2003, with attached copy of legal publication, April 3, 2003 letter to Mr. Dierker from John Daly, Determination of Nonsignificance and Adoption of Existing Environmental Document dated 3-18-03, and Application for Coverage (first page only);

2.      Supplemental letter filed by Mr. Dierker on April 14, 2003;

3.      Appellant’s Addendum to Appellant’s appeal pleadings and supporting documents filed by Mr. Dierker on May 1, 2003;

4.      Appellant’s Addendum to Notice of Appeal and Request for Stay filed May 1, 2003, with attached Coverage Letter from Ecology to Health dated March 19, 2003, Aquatic Mosquito Control NPDES General Permit issued April 10, 2002, and Fact Sheet dated April 17, 2002;

5.      Ecology’s Response to Motion for Stay filed on May 20, 2003, Declaration of Kathleen Emmett and attached Exhibits 1through 11;

6.      Health’s Response to Motion for Stay filed on May 20, 2003, Declaration of John Daly, and Exhibits A through I;

7.      Appellant’s Reply to Appellees’ Responses to Appellant’s Request for Stay, Appellant’s Declaration in Support of Appellant’s Reply, and Appellant’s Clerical Correction to Appellant’s original March 27, 2003, Notice of Appeal;

8.      Letter from the Board dated June 12, 2003;

9.      Mr. Dierker’s Brief on SEPA Comment, et seq., filed June 16, 2003;

10.  Health’s Response to Board’s Request for Information filed June 19, 2003, and Second Declaration of John P. Daly with attachments J through N;

11.  Letter from Thomas Young, AAG for Ecology, dated June 19, 2003;

12.  Letter to Department of Health from Mr. Dierker, filed June 20, 2003; and

13.  Appellant’s Clerical Correction to Appellant’s Original March 27, 2003, Notice of Appeal, filed June 25, 2003.

 

 

 

BACKGROUND

            Ecology developed a general permit for mosquito control which was issued, along with a fact sheet, on April 10, 2002. [[Kay, would it be appropriate or correct to say that no appeals of the issuance of the general permit were filed within the 30 day appeal period, which expired on _________]]????   Prior to the approval of the general permit, an environmental checklist was prepared, and a determination of nonsignficance (DNS) was issued by Ecology pursuant to the requirements of the State Environmental Policy Act (SEPA).  The time period to challenge the general permit and the underlying DNS ended on May 10, 2002.  Therefore, the validity of the general permit is not before the Board in this appeal. 

The general permit authorizes the discharge of several compounds for mosquito control purposes.  The preferred pesticides are bacterial compounds that are effective against mosquito larva.  The pesticides are to be used pursuant to a set of best management practices (BMPs) which were issued by Ecology in March of 2003.  The preferred controls include a variety of public education and prevention techniques as well as use of pesticides.  An environmental checklist was prepared, and a DNS issued by Ecology prior to the issuance of the BMPs. 

On March 18, 2003, Health applied for coverage under the general permit for a program it was initiating to control mosquito populations that may carry the West Nile Virus.  On the same day, Health adopted the DNS and environmental checklist prepared by Ecology on the general permit.  Its notice provided comments would be accepted on the DNS until April 2, 2003.  On March 19, 2003, Ecology issued a coverage letter to Health stating coverage would be granted commencing on April 25, 2003.  Health published notice of its application in newspapers around the state on March 21, 2003, and March 28, 2003.  The notice indicated comments could be submitted on Health’s application, pursuant to WAC 173-226-130(5), until April 28, 2003.  The comment period ended three days after the effective date of the coverage letter.

Health itself is not controlling mosquitoes under the permit, but is transferring coverage to local health jurisdictions and other entities to control mosquitoes.  Health did not make any transfers of coverage with an effective date prior to the effective date of the coverage letter, but it made one transfer with an effective date prior to the end of the comment period on the application.  That transfer, to the Camano Island Mosquito District I, was made effective on April 26, 2003.  Since April 28, 2003, Health has issued authorizations to 15 other entities to act as Health’s agents to carry out the program of mosquito control.  Approximately eight more requests for transfer of coverage were under review at the time of the briefing on this motion.

Motion to Strike Ecology’s response brief

            A briefing schedule was established by the Board on Mr. Dierker’s Motion for a Stay.  Ecology’s response brief was due on May 20, 2003.  The brief was received by the Board, and placed in the mail to Mr. Dierker on May 20, 2003.  Under WAC 371-08-305(9), service occurred when the brief was placed in the mail to Mr. Dierker.  Mr. Dierker has not pointed to any formal requirement that he receive the document on the day it is due to be filed and served.  Therefore, service by mail was timely and the motion to strike is denied.[1]

ANALYSIS

Mr. Dierker is seeking a stay of Ecology’s issuance of coverage to Health for mosquito control activities under the Aquatic Mosquito Control National Pollutant Discharge Elimination System General Permit #WAG992000.  In order to qualify for a stay pursuant to RCW 43.21B.320 and WAC 371-08-415(4), a party must make a prima facie demonstration of either a likelihood of success on the merits, or irreparable harm.  Upon such a showing, the board shall grant the stay unless the respondent demonstrates either a substantial probability of success on the merits, or a likelihood of success on the merits and an overriding public interest which justifies denial of the stay. 

The Board recently explained likelihood of success on the merits in Airport Communities Coalition v. Ecology, PCHB No. 01-160, at p. 2 (Order Granting Motion to Stay Effectiveness of Section 401 Certification)(December 17, 2001):

Likelihood of success on the merits means one or both sides have presented the Board with justiciable arguments for and against a particular proposition. Likelihood of success on the merits is not a pure probability standard under RCW 43.21B.320 and WAC 371-08-415(4). This standard does not require the moving party to demonstrate it will conclusively win on the merits, but only that there are questions "so serious as to make them fair ground for litigation and thus more deliberative investigation." The evaluation of the likely outcome on the merits is based on a sliding scale that balances the comparative injuries that the parties and non-parties may suffer if a stay is granted or denied. For example, where the non-moving party will incur little or no harm or injury if a stay is granted, then the moving party's demonstration of likelihood of success need not be as strong as where the non-moving party would suffer great injury."
(Citations omitted.)

 

In this situation, due to the strong public interest in moving forward quickly with mosquito control measures to protect against West Nile Virus, and the serious potential for injury to the public if a stay is granted, Mr. Dierker must make a strong showing to establish a prima facie case for prevailing on the merits.  The Board concludes Mr. Dierker has failed to make such a showing of either a likelihood of success on the merits, or irreparable harm.  Further, even if such a showing was made, the agencies have demonstrated a likelihood of success on the merits and an overriding public interest which justifies denial of the stay.

LIKELIHOOD OF SUCCESS

Timing

Mr. Dierker’s primary argument for invalidity of the extension of coverage is based on some apparent irregularities in the processing of Health’s coverage application.  First, he argues because the coverage letter was issued to Health prior to the end of either the SEPA or NPDES comment period, it is invalid.  The Board does not find this argument persuasive.  The date the coverage letter was issued, March 19, 2003, is not significant since the letter itself stated coverage was not effective until April 25, 2003.[2]  Further, Health did not take action pursuant to the extension of coverage until April 26, 2003.  Therefore, until at least April 26, 2003, either

Ecology or Health could have responded to comments by revoking Health’s coverage or deciding on restrictions on future authorizations by Health to local districts.  In fact, Health did receive a comment from Washington State Department of Fish and Wildlife on April 25, 2003.  Health responded by adding additional restrictions to the authorizations to protect state species of concern. 

Mr. Dierker also argues, and the agencies admit, action was taken by Health pursuant to the authorization of coverage prior to the end of the NPDES comment period.  The Board is troubled by the agencies’ disregard for the completion of the NPDES comment period.  However, it does not find Mr. Dierker has shown a likelihood of prevailing on the argument that Health’s issuance of coverage to Camano Island Mosquito District No. 1, premature though it was, resulted in the invalidity of either Health’s coverage, or the coverage Health issued to Camano Island.

Mr. Dierker’s own comment was received by the agencies on or around April 10, 2003, well before Health issued the authorization to Camano Island on April 26, 2003.  Health, the SEPA lead agency on its application for coverage, considered Mr. Dierker’s comment carefully, even though it was received after the stated end of the SEPA comment period.  If either Health or Ecology had found Mr. Dierker’s comment persuasive, they would have had time to respond before action was taken under the extension.  Further, the Board, exercising its de novo review authority pursuant to WAC 371-08-485(1), has read Mr. Dierker’s comment and considered whether the information contained in it constitutes a basis for invalidating Health’s decision to issue authorization to Camano Island to proceed with mosquito control activities.  The Board concludes the substantive information contained in Mr. Dierker’s comment letter is aimed at concerns with the underlying general permit, and not the extension of authorization to Health under the coverage letter.  Pursuant to WAC 173-226-190(2), Mr. Dierker cannot challenge the general permit in this appeal.

SEPA

            Mr. Dierker argues Health’s SEPA determination of non-significance was substantively invalid because the mosquito control procedures authorized in the general permit will have the probability of significant impact to the environment.  This argument, which is an attack on the SEPA process underlying the general permit, and not on the extension of coverage to Health, cannot be raised in this appeal.  WAC 173-226-190(2) limits the scope of this appeal to the general permit’s applicability or non-applicability to the individual discharger.  The Board has interpreted this rule to allow consideration of whether pollution associated with activities associated with the extension of coverage will be controlled by the requirements of the general permit.  See Cascade Conservation League v. Ecology and Boyden, Robinett & Associates, PCHB 98-82, pp. 3, 4 (Dec. 31, 1998)(Order granting and denying summary judgment).  Mr. Dierker’s substantive SEPA arguments are aimed at perceived impacts allowed by the general permit, not the extension of coverage to Health, and therefore are not within the allowable scope of this appeal.

Mr. Dierker makes one additional procedural argument under SEPA.  He argues adoption of the environmental checklist and determination of non-significance, prepared for the general permit SEPA process, was not proper because the action being proposed by Health was a project action, not a non-project action.  He argues the adopted documents, because they were prepared for a non-project action, are not specific to Health’s proposed activities under the coverage extension.  Mr. Dierker fails to make a case, however, for what specifics Health is proposing that were not addressed in the SEPA process on the general permit.  Instead, he merely points to the fact the documents were prepared for a non-project action, and concludes they are not specific enough.  The Board is not persuaded, based on the pleadings filed by Mr. Dierker to date, that he is likely to prevail on this issue at the hearing.

Non-compliance with federal statutes

            Mr. Dierker contends the extension of coverage to Health is invalid because of failure to comply with the National Environmental Policy Act (NEPA).  He has failed to make an adequate showing there is a federal action involved that would trigger the requirement to comply with NEPA.  Similarly, he has failed to make a showing that an action triggering the need for a 401 certification has occurred, such that the agencies failure to obtain a 401 certification would be a basis for invalidity of the action.  Finally, with regard to his argument that the extension of coverage is deficient because of noncompliance with the Endangered Species Act, he has failed to establish a basis for the applicability of the ESA provisions to the action at issue here or the Board’s jurisdiction over this issue. 

Constitutional issues

            Mr. Dierker argues the extension of coverage violates the constitution.  The Board does not have jurisdiction over constitutional issues.  Moore v. Ecology, PCHB 02-207 (April 14, 2003).

JARPA

            Mr. Dierker argues the extension of coverage is invalid because Health failed to make its application on the Joint Aquatic Resource Permit Application (JARPA) form.  In his pleadings, he fails to point to any law requiring Health to use a JARPA form in this situation, or that failure to use a JARPA form makes an extension invalid.  Therefore, he has failed to make a showing that this omission would support a claim for relief. 

CR 8

            Mr. Dierker contends, based on CR 8(d), the Board must treat all of his factual and legal claims not specifically responded to by the agencies as true and correct.  CR 8(d) is a Superior Court general pleading rule that provides where a responsive pleading is required to averments in a pleading, the averments are admitted if not denied or avoided.  This rule, which pertains to the process for filing and responding to complaints in Superior Court, is not relevant to requirements for responses to a stay motion filed before this Board. 

IRREPARABLE HARM

            Mr. Dierker claims the extension of coverage to Health and the resulting mosquito control activities will cause irreparable harm because the natural environment will be destroyed by the chemicals which may be used.  Mr. Dierker’s claim, which is not supported by any expert sworn testimony, does not establish a prima facie case for irreparable harm.  We conclude Mr. Dierker has failed to make a prima facie showing of irreparable harm. 

            Based on the above analysis, the Board concludes Mr. Dierker has failed to make a prima facie case demonstrating he is likely to either prevail on the merits of this appeal or that there will be irreparable harm if Health’s coverage is allowed to continue pending a full hearing on the merits.

OVERRIDING PUBLIC INTEREST

Even if Mr. Dierker has made a prima facie showing, the agencies have also made a showing they are likely to prevail on the merits, based on the arguments available to refute Mr. Dierker’s claims.  See Blohowiak v. Seattle-King County Department of Health, PCHB No. 99-093(Sept. 28, 1999)(Order on Motions for Partial Summary Judgment and Stay)(concluding both sides had reasonably shown a likelihood of prevailing on the merits).  The Board then turns to the question of public interest.

            Here, the agencies have made a strong showing of the public interest in proceeding with mosquito control activities due to the public health threat posed by the West Nile Virus.  Further, the safest and most effective way to control the mosquito population, after non-pesticide measures have been taken, is through the control of mosquito larvae.  “Larvaciding,” as this procedure is called, must be done during the mosquito-breeding season which runs from April through August.  Issuance of a stay of Health’s authorization at this time would prevent Health and cooperating entities and individuals across the state from using this effective procedure in its battle to protect the public from West Nile Virus this summer.

Based on the foregoing analysis, we issue the following:

ORDER

            Mr. Dierker’s motion for a stay of Ecology’s extension of coverage to Health for mosquito control activities pursuant to NPDES Permit No. WAG992000 is denied. 

DONE this 3rd day of July 2003.

                                                POLLUTION CONTROL HEARINGS BOARD

                                                                        __see dissenting opinion__________

ROBERT V. JENSEN, Chair

                                                                        KALEEN COTTINGHAM, Member

 

                                                            WILLIAM H. LYNCH, Member

 

Kay M. Brown

Administrative Appeals Judge, Presiding



[1] As a matter of courtesy, especially in situations where the turn around time is short, the Board believes the better practice is to ensure that a document is actually received by the other side on the day it is filed.  Although the Board encouraged this practice, it was not formally required.

[2] The dissent opines that Ecology’s decision on the authorization, as reflected in the March 18 letter, was the agency action under SEPA, and it was taken prior to the expiration of the 14 day comment period.  Even if correct, Ecology’s violation of the SEPA comment period was without legal consequence or prejudice because no actual activities were conducted pursuant to the authorization until April 26, 2003.  Although there are no court decisions directly on point, Professor Richard Settle has written in Washington State Environmental Policy Act: A legal and Policy Analysis, at pp. 20-4 and 20-37 (2002), that the Washington courts are reluctant to undo agency action for inconsequential procedural violations of SEPA and has cited several such cases in which SEPA violations were harmless error or not prejudicial.  See Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720, 696 P.2d 1222(1985); Moss v. City of Bellingham, 109 Wn. App. 6 (2001), 31 P.3d 703, rev. denied, 146 Wash 2d 1017 (2002).