BEFORE THE POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
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BERNARDO’S AROMA ROSTERIA, Appellant, v. PUGET SOUND CLEAN AIR AGENCY, Respondent. |
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PCHB 04-041 ORDER GRANTING SUMMARY JUDGMENT AND DISMISSAL |
Bernardo’s Aroma Rosteria (“Bernardo’s”) has appealed to the Pollution Control Hearings Board (“Board”) the Puget Sound Clean Air Agency’s (“PSCAA”) issuance of Order to Prevent Construction Application No. 8970. Application No. 8970 is for approval of a Notice of Construction to use a Probat L12 coffee roaster, as a new source.
Bernardo’s filed a motion for summary judgment on whether (1) the coffee roaster constitutes a de minimis source under RCW 70.94.152(11) and (12), and PSCAA’s Regulation I, § 6.07; and (2) whether PSCAA’s BACT determination is appropriate under RCW 70.94.030(6). PSCAA filed a cross motion on the same issues.
John R. Spencer of Spencer & Loescher, represents Bernardo’s. Laurie S. Halvorson represents PSCAA.
Robert V. Jensen, presiding; William H. Lynch, Chair; and Bill Clarke comprised the Board. The Board reviewed the record, having considered the following pleadings filed by the parties:
DISCUSSION
This is a close case. However, the Board concludes Bernardo’s has not met its burden of proving PSCAA’s denial of its order preventing the use of the Probat L12 coffee roaster was unlawful. We conclude the coffee roaster does not qualify as a de minimis source under RCW 70.94.152(11) and (12), or PSCAA’s Regulation I, § 6.07. We also conclude Bernardo’s has failed to demonstrate PSCAA’s best available control technology (“BACT”) determination was unlawful. Specifically, Bernardo’s failed to prove PSCAA’s BACT determination, which requires an afterburner to be attached to Bernardo’s coffee roaster, would impose any significantly greater costs on Bernardo’s than requiring this technology would impose on other similar sources. Our ruling is confined to the facts before us. We do not decide what the result would be if Bernardo’s were to apply for a Notice of Construction for a smaller roaster, or for a modification to the roaster limiting the size of the batch, which could be produced.
BACKGROUND
I
Bernardo Tuma owns Bernardo’s Aroma Rosteria, a small eatery and café, which is located at 1001 Pacific Avenue in downtown Tacoma. On Friday, April 18, 2003, an individual called PSCAA to complain of a stench from thick smoke emanating from Bernardo’s, as she was leaving work to catch the bus. Affidavit of Robert E. Booher in Support of Puget Sound Clean Air Agency’s Response to Motion for Summary Judgment, Ex. 2. This is the first complaint PSCAA has received complaining about smoke and odor from the operation of Bernardo’s coffee roaster. Booher Affidavit, Ex. 4. However, PSCAA has received numerous complaints about smoke and odor emissions from coffee roasters. Affidavit of Agata Z. McIntyre in Support of Respondent Puget Sound Clean Air Agency’s Response to Summary Judgment Motion and Respondent’s Cross Motion for Summary Judgment at 14-15.
II
On April 28, 2003, Robert Booher, PSCAA air quality inspector went to Bernardo’s and met the owner. Booher Affidavit at 1. Bernardo’s then owned a Probat L5 coffee roaster, which had a capacity to roast 22 kilograms per batch. Id. Mr. Tuma estimated he roasted about 100 pounds of coffee a month. Id. Mr. Tuma had been operating the coffee roaster for approximately nine years without an afterburner, which is an incineration device, which greatly reduces, and in some cases eliminates smoke and odor emissions from a coffee roaster. Booher Affidavit at 2 and Ex 4; McIntyre Affidavit at 16. Mr. Booher advised Mr. Tuma to apply for a Notice of Construction from PSCAA for the coffee roaster. Booher Affidavit at 2. Mr. Tuma stated he could not afford an afterburner, and inquired whether one was definitely required. Booher Affidavit, Ex. 2, at 2. Mr. Booher told Mr. Tuma he would seek guidance from the agency, and would get back to him. Id.
III
Mr. Booher returned to Bernardo’s on May 6, 2003. Booher Affidavit at 2. He confirmed PSCAA would probably require Mr. Tuma to install an afterburner on the coffee roaster. Id. Mr. Booher then issued Mr. Tuma a Notice of Violation for failure to have an approved Notice of Construction for the coffee roaster. Booher Affidavit at 2 and Ex. 3. The Notice of Violation gave Mr. Tuma until June 6, 2003, to apply for the Notice of Violation, or in the alternative, discontinue use of the roaster. Booher Affidavit at 2. Mr. Tuma, on May 30, wrote PSCAA stating he had discontinued use of the coffee roaster. Id. He further contended he did not need approval of a Notice of Construction to operate it. Id.
IV
Bernardo’s appealed the Notice of Violation to the Board,
which resulted in the case: Bernardo’s Aroma Rosteria v. PSCAA, PCHB
03-083 (Bernardo’s I). As
a result of negotiations, Bernardo’s agreed to submit a request for a Notice of
Construction application, and a request Bernardo’s be exempted as a de minimis
source from that requirement. This
resulted in dismissal of Bernardo’s I.
V
Bernardo’s, on January 9, 2004, submitted to PSCAA application No. 8970 for a Notice of Construction, which was accompanied by a letter and supporting materials. McIntyre Affidavit at 3. The Notice of Construction application was for a Probat L12 coffee roaster, with a batch capacity of 12 kilograms (26 pounds). Id. at 4 and Ex. 2, at unnumbered page 5. Bernardo’s explained the roaster produced a de minimis volume of pollutants, and therefore should be exempt from the requirement of a Notice of Construction. Id. and Ex. 2, at unnumbered page 3. Bernardo’s proposed to produce 2-15 pound batches, one day a week, or a total of approximately 150 pounds a month (.90 tons)[1]. Id. at unnumbered page 2.
VI
Agata McIntyre, PSCAA permit engineer, and Steven Van Slyke, supervisory engineer for PSCAA, reviewed Bernardo’s Notice of Construction application. McIntyre Affidavit at 2-3. They first reviewed the request for a de minimis exemption from new source approval. Id. at 3. They concluded the proposal did not qualify for a de minimis exemption under the relevant law. Id.
VII
PSCAA, on February 19, 2004, sent Bernardo’s a Notice of Intent to Disapprove Construction, notifying Bernardo’s a de minimis exemption for the coffee roaster from the new source approval requirements was inappropriate. McIntyre Affidavit at 4 and Ex. 4. The agency further noted it could not approve the coffee roaster proposed because the application failed to demonstrate BACT. Id. This notice offered Bernardo’s the opportunity to petition for reconsideration within 60 days. Id.
VIII
On February 26, 2004, Bernardo’s submitted a request for reconsideration through its attorney. Id. at 5 and Ex. 5. The proposal did not include a proposal to purchase or install an afterburner. Id. Ms. McIntyre reviewed the proposal and wrote a memo to the file documenting her responses to Bernardo’s petition for reconsideration. McIntyre Affidavit at 5 and Ex. 6.
IX
PSCAA has a long history of requiring Notices of Construction applications to be submitted for coffee roasters. McIntyre Affidavit at 14. The agency has approved Notices of Construction for over 100 coffee roasters, which range from as small as 3.5 pounds per batch to over 500 pounds per batch.2 McIntyre Affidavit at 4 and 14. The agency requires these applications due to the potential for the roasters to cause smoke and odor, and for the potential of certain larger coffee roaster to emit toxic air contaminants, volatile organic compounds, particulate matter, and carbon monoxide. Id. at 14.
X
In regard to Bernardo’s application, PSCAA analyzed a representative sample comprising 24 coffee roasters in its jurisdictional area of Snohomish, King, Pierce, and Kitsap Counties. Id., Ex. 6, at 2. These roasters range in batch size capacity from 20 to 30 pounds. Id. PSCAA has required an afterburner on all of these roasters. Id. The annual production is unknown for two of these roasters. The rest produce an annual range of from 2.5 to 120 tons per year of coffee. Id. None of the Notices of Construction for these roasters limits the amount of annual production of coffee. Id.
XI
Larger coffee roasters may emit toxic air contaminants. Id. , Ex. 6, at 3. Bernardo’s coffee roaster, even if operated constantly all year, would not violate any of PSCAA’s toxic air quality emission limits. Id. , Ex. 3, at 2-3. The main air contaminants of concern from a coffee roaster, the size proposed by Bernardo’s are smoke and odor. McIntyre Affidavit at 14-15.
XII
It is unlawful to cause or allow the emission of any air contaminant for a period of more than 3 minutes in any hour, which has an opacity of more than 20 percent. Regulation I, §§ 9.03(a). Id. at 14. Regulation I, § 9.11 authorizes the agency to take enforcement action if it documents an odor of Level 2 or greater. Id. at 15. A Level 2 odor is “one that is distinct and definite, and any unpleasant characteristics are recognizable as coming from the source in question.” Id. PSCAA is concerned with the emissions of smoke from coffee roasters, such as Bernardo’s proposed Probat L12, in excess of the opacity standard above, and odors of Level 2 or higher, that can unreasonably interfere with the enjoyment of life or property. Id.
XIII
Bernardo’s originally estimated the cost of the Probat L12 coffee roaster at $20,000, and the cost of an installed afterburner at $16,000. Id., Ex. 2, unnumbered page 1. Later, Mr. Tuma intimated in an unsworn declaration the cost of installing the afterburner would be $25,000 to $30,000, and “maybe $2,000 or $3,000 per month to maintain and operate it. Bernardo’s Aroma Rosteria’s Motion for Summary Judgment and Memo in Support, Ex. P-9, at unnumbered page 3. Bernardo’s did not submit any economic data indicating the cost for Bernardo’s to install an afterburner would be any greater than the cost for similar sized sources to install the same pollution control technology.
XIV
PSCAA, on March 24, 2004, issued Bernardo’s an Order to Prevent Construction. McIntyre Affidavit at 7 and Ex. 7. The order was based on PSCAA’s affirmation Bernardo’s proposal did not qualify as a de minimis exemption from the new source approval requirements, and did not demonstrate BACT. Id.
CONTENTIONS
XV
Bernardo’s contends the fact it proposes to limit the number of batches of coffee it produces, qualifies it as a de minimis source, which should be exempted from the Clean Air Act’s requirement for new source approval. Bernardo’s Memo at 7-9; Bernardo’s Aroma Rosteria’s Reply to Cross Motion for Summary Judgment at 6-7. It also contends these self-imposed usage limitations excuse it from having to install the BACT afterburner technology. Bernardo’s Memo at 5-7 and 9-11; Bernardo’s Reply at 3-5.
XVI
PSCAA responds it properly denied Bernardo’s request for a de minimis exemption from the agency’s new source approval requirements. Respondent Puget Sound Clean Air Agency’s Response to Appellant’s Motion and Memorandum in Support of Cross Motion for Summary Judgment at 8-9 an 14-15. PSCAA explains it occasionally places usage limits on larger coffee roasters because of concerns about toxic air pollution, exceeding certain maximum thresholds, such as the Acceptable Source Impact Levels (“ASIL’s”) for toxic air pollutants. McIntyre Affidavit, Ex. 6, at unnumbered page 3. However PSCAA does not consider usage limitations for coffee roasters the size of Bernardo’s proposal, because limits on the amount of production, such as proposed by Bernardo’s do not eliminate the underlying smoke and odor problems when the roaster is in operation. Response at 9, 12, at n. 4 and 14-15. PSCAA additionally responds the afterburner technology it is requiring is technologically feasible, achievable, available, and has not been shown to be economically infeasible. Response at 10-13 and 16.
STANDARD OF REVIEW
XVII
Under Civil Rule 56, summary judgment shall be granted for the moving party if the pleadings and affidavits or declarations show there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law. Summary judgment is designed to do away with unnecessary trials when there is no genuine issue of material fact. LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). In a summary judgment proceeding, the moving party has the initial burden of showing there is no dispute as to any material fact. Hiatt v. Walker Chevrolet, 120 Wn.2d 57, 66, 837 P.2d 618 (1992). A material fact is one upon which the outcome of the litigation depends. Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977).
XVIII
We conclude there are no genuine issues of material fact. We further conclude PSCAA is entitled to judgment and dismissal as a matter of law.
ANALYSIS
XIX
The Board has jurisdiction over the parties and the subject matter. RCW 70.94. 152; RCW 90.54.030; RCW 70.94.221; RCW 43.21B.110(c) and (h).
XX
PSCAA, as an air authority may require a notice of construction for any new sources. RCW 70.94.152; Regulation I, § 6.03(a). Bernardo’s application is for a new source. It has apparently applied for a different coffee roaster from the one it had when PSCAA received the complaint over smoke and odors emanating from Bernardo’s roaster. Even if Bernardo’s were applying for the old machine, it would be considered a new source, because it has never previously been permitted by PSCAA.
XXI
PSCAA has promulgated a list of 138 miscellaneous exemptions from the new source approval requirements. Regulation I, § 6.03(c). Exemption 100 is for: “Equipment used in retail establishments to dry, cook, fry, bake, or grill food for human consumption, including charbroilers, smokehouses, barbecue units, deep fat fryers, cocoa and nut roaster, but not including coffee roasters. (Emphasis added). Therefore, for a coffee roaster to be exempt, it must come within the de minimis exemption found at contained in Regulation I, § 6.03(b)(10). Regulation I, § 6.03(b)(10) provides: Any source not otherwise exempt under Section 6.03(c) of this regulation that has been determined through review of a Notice of Construction application by the Control Officer not to warrant an Order of Approval because it has a de minimis impact on air quality and does not pose a threat to human health or the environment.” RCW 70.94.152(12) defines “de minimis” new sources as “new sources with trivial levels of emissions that do not pose a threat to human health or the environment.”
XXII
Exemptions to a statute are to be narrowly construed, in order to give maximum effect to the legislative policy underlying the general rule. R.D. Merrill Co. v. Pollution Bd., 137 Wn.2d 118, 140, 969 P.2d 458 (1999) (holding exceptions to the relinquishment provisions of the state water laws must be narrowly construed to give effect to the legislative intent underlying the general provisions).
XXIII
PSCAA historically has required
coffee roasters, similar in size to that proposed for use by Bernado’s, as
subject to the new source requirements.
They conclude such roasters, regardless of how often they are used,
present a threat of smoke and odor pollution under the agency’s
regulations. Thus, PSCAA has required
new source approval for even smaller roasters, such as one with a capacity of
3.5 pounds per batch, which is approximately 13% of the size of the 26 pound
roaster proposed by Bernardo’s. The
complaint registered against Bernardo’s in April 2003, occurred at a time when
Bernardo’s was roasting about the same volume of coffee (100 pounds per month)
he currently proposes to roast (150 pounds per month). Booher Affidavit, Ex. 4; McIntyre Affidavit,
Ex. 2, at unnumbered page 2. We also
note the evidence showing PSCAA approved at least two coffee roasters, of the
same size as Bernardo’s, which produce emissions in the general range proposed
by Bernardo’s.3 (These two sentences are moved to the next
paragraph.)
XXIV
PSCAA has indicated it normally limits coffee roaster batch size based upon the largest batch physically available for the coffee roaster. This is because the circumstances for limiting the batch size may change in the future, and it is necessary to be readily able to determine whether a source is in continuance compliance with the permit conditions. McIntyre Affidavit, Ex. 6, at 3. The Board is reluctant to apply an expansive reading of the de minimis exemption when there is no proposed equipment to limit the batch sizes, or which will record the amount and size of the batches roasted to ensure compliance with the permit. We conclude, based on the evidence submitted, PSCAA’s conclusion Bernardo’s proposed Probat L12 coffee roaster does not qualify for the de minimis exemption was reasonable. We render this conclusion regardless of whether the roaster is operated at full capacity, or at the one time a week rate proposed by Bernardo’s.
XXV
We acknowledge Bernardo’s argument PSCAA has applied usage limitations on larger coffee roasters. However, the unrebutted evidence is PSCAA has only applied those limitations to ensure such roasters do not emit toxic air pollutants, in violation of maximum air pollution limits for toxic substances. Ex. 6 at page 3. Opacity and odor emissions are perhaps less harmful to the health and the environment than toxic emissions. However, the source must have a de minimis impact on air quality as well as not posing a threat to human health and the environment in order for the exemption to apply. The smoke and odor which can be produced by Bernardo’s roaster may well result in an impact on air quality. Therefore, we conclude Bernardo’s proposal does not constitute a de minimis source, which is entitled to exemption from the new source approval requirements contained in the RCW 70.94.152 and in PSCAA’s regulations.
XXVI
A notice of construction order of approval requires a determination a new source will achieve BACT. RCW 70.94.152(10).
BACT is spelled out in RCW 70.94.030(6). It means:
an emission limitation based on the maximum degree of reduction for each pollutant subject to regulation under this chapter emitted from or that results from any new or modified stationary source, that the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such a source or modification through application of production processes and available methods, systems and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant.
XXVII
When Agata McIntyre reviewed Bernardo’s Notice of Construction for BACT, she followed the guidance of the Environmental Protection Agency (“EPA”). Specifically, she followed EPA’s Draft New Source Review Workshop Manual. McIntyre Affidavit, Ex. 10, at Table B-1, at B.6. This involves a five-step process, consisting of:
1. Identify all control technologies.
2. Eliminate technically infeasible options.
3. Rank remaining control technologies by control effectiveness.
4. Evaluate most effective controls and document results.
5. Select BACT.
XXVIII
PSCAA reviewed Bernardo’s application as well as previous orders of approval issued
for coffee roasters in accordance with the BACT criteria. PSCAA has found the addition of an afterburner to be technically feasible because it required the installation of afterburners on numerous coffee roasters similar to Bernardo’s. An afterburner incinerates the gases from the exhaust of the roaster and are an effective means for controlling smoke and odor from coffee roasters. McIntyre Affidavit at 4.
XXIX
Steps three and four involve assessments of economic costs, which consist of: total and incremental cost effectiveness. Id. How this is measured is described in the section on “Cost/Economic Impacts Analysis.” Id., Ex. 10, atB.31. The document describes this in part as follows:
Average and incremental cost effectiveness are the economic criteria that are considered in the BACT analysis. Cost effectiveness, is the dollars per ton of pollutant emissions reduced. Incremental cost is the cost per ton reduced and should be considered in conjunction with total average effectiveness.
In the economical impacts analysis, primary consideration should be given to quantifying the cost of control and not the economic situation of the individual source. Consequently, applicants generally should not propose elimination of control alternatives on the basis of economic parameters that provide an indication of the affordability of a control alternative relative to the source. BACT is required by law. Its costs are integral to the overall cost of doing business and are not to be considered an afterthought. Consequently, for control alternatives that have been effectively employed to the same source category, the economic impact of such alternatives on the particular source under review should be not nearly as pertinent to the BACT decision making process as the average and, where appropriated incremental cost effectiveness of the control alternative. Thus, where a control technology has been successfully applied to similar sources in a source category, an applicant should concentrate on documenting significant cost differences, if any, between the application of the control technology on these other sources and the particular source under review.
Cost effectiveness (dollars per ton of pollutant reduced) values above the levels experienced by other sources of the same type and pollutant, are taken as an indication that unusual and persuasive differences exist with respect to the source under review. In addition, where the cost of a control alternative for the specific source reviewed is within the range of normal costs for that control alternative, the alternative, in certain circumstances, may still be eligible for elimination. To justify elimination of an alternative on these grounds, the applicant should demonstrate to the satisfaction of the permitting agency that costs of pollutant removal for the control alternative are disproportionately high when compared to the cost of control for that particular pollutant and source in recent BACT determinations. (Emphasis added).
XXX
PSCAA indicates operation limits may be used in an analysis to determine whether a
Control technology is significantly more expensive for a given source than for other similar
sources that already use control technology. Affidavit of McIntyre at 12. However, the
record does not reveal Bernardo’s made an effort to show how its costs of complying with the afterburner technology, would compare to the costs for other similar sources. For example, PSCAA has required an afterburner as BACT, for at least one coffee roaster, which being capable of producing only 3.5 pounds of coffee per batch is much smaller than the one proposed for use by Bernardo’s. Bernardo’s correctly asserts the majority of the 24 coffee roasters, which PSCAA compared to Bernardo’s, and which are of the same or similar size, produce significantly more coffee than Bernardo’s proposes to produce. Bernardo’s Reply at 4. However, PSCAA’s data reveal the agency has required the afterburner technology on four of these roasters, despite the fact those sourced produce an annual volume of coffee, which is of the same order of magnitude as that Bernardo’s proposes to produce. McIntyre Affidavit, Ex. 6, at 2. More importantly, because the pollution generated by coffee roasters consists of smoke and odor, the annual production of the roaster is probably less significant than the size of the roaster itself. This fact was demonstrated by the fact the complaint registered against Bernardo’s came at a time when it was producing slightly less coffee on an annual basis, than it proposed to produce under its current application. Thus, we conclude Bernardo’s has not shown its costs of installation of the afterburner technology are disproportionately high when compared to recent BACT decisions by the agency.
XXXI
Moreover, we believe it would defeat the intent of the statute if a known source of pollution could achieve BACT, simply by limiting its hours of production, when there are known and reasonably available pollution control devices, which if implemented, would ensure compliance with all the appropriate pollution standards. Such a result would increase the risk of operator error, and as PSCAA’s permit reviewer points out, would be more difficult to enforce. McIntyre Affidavit at 6. We hesitate to second-guess the agency, which is entrusted with implanting the Clean Air Act on this conclusion. We also acknowledge the agency must weigh economic factors, when implementing BACT.
XXXII
Our conclusions do not however, mean Bernardo’s is without recourse. It could for instance apply for a smaller roaster, such as the one-pound per batch PSCAA recently approved as a de minimis source. McIntyre Affidavit at 13. Another alternative might be to use a smaller roaster drum. Id. at 6. It may also be possible to attach a measuring device to the roaster, which would ensure only small batches of coffee, such as a one-pound batch were being roasted.
XXXIII
Based upon the foregoing analysis, the Board issues the following:
ORDER
The Board affirms PSCAA’s Order to Prevent Construction Application No. 8970.
DONE
this 27th day of August 2004.
POLLUTION CONTROL HEARINGS BOARD
ROBERT V. JENSEN,
Presiding
WILLIAM H. LYNCH, Chair
BILL CLARKE, Member
P 04-041 SJ
[1] Bernardo’s attorney wrote in a letter dated February 23, 2003 to PSCAA, Bernardo’s proposal to roast a maximum of 1.56 tons per year of coffee. McIntyre Affidavit at Ex. 5. This figure seems to be the result of multiplying 30 pounds per day times 52 weeks a year. The result of this calculation however, is 1,560 pounds, not 1.56 tons. Bernardo’s application proposes batching 150 pounds per year, which yields a total of 1,800 pounds, or .90 tons per year.
2 The agency recently exempted two one pound per batch coffee roasters from the requirement to receive approval of a Notice of Construction. McIntyre Affidavit at 13.
3 These are Black Swan Coffee Roasting Company and Best Shot Espresso and, which produce 2.5 and 3.0 tons per year respectively, of coffee.