BEFORE THE POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
[1]
This is an appeal of an
individual National Pollution Discharge Elimination System permit (“NPDES
permit”) issued by the Washington Department of Ecology (“Ecology”) to Teck
Cominco American, Inc. (“TCA”). The
NPDES permit is for the Pend Oreille Mine, near Metaline Falls in northeast
Washington State. Okanogan Highlands
Alliance, Washington Public Interest Research Group, and The Lands Council
(“OHA”) appealed the issuance of the permit.
[2]
Before the Board are motions for partial summary judgment. The Board deliberating on the motions for summary judgment consisted of Bill Clarke, Presiding, William H. Lynch, Chair, and David W. Danner. The Board decided the motions on the written record. The record before the Board consisted of:
1. OHA’s Motion for Summary Judgment and Exhibits 1 – 18;
2. TCA’s Motion for Summary Judgment on Issue 5(d) and Declaration of Peter H. Haller;
3. Ecology’s Response to Appellants’ and Co-Respondent’s Dispositive Motions and Declaration of Peter Hallinan;
4. OHA’s Response to TCA’s Motion for Summary Judgment;
5. TCA’s Response to Appellants’ Motion for Summary Judgment;
6. OHA’s Reply in Support of Motion for Partial Summary Judgment and Exhibits 19 – 23.
7. TCA’s Reply to Appellants’ Response Brief.
Having fully considered the record in this case and being fully advised, the Board enters the following order.
[3]
The Pend Oreille Mine is an underground lead and zinc mine with surface ore processing and tailings disposal located about two miles North of Metaline Falls. Ongoing dewatering of the mine and discharge to the Pend Oreille River has been regulated by an NPDES permit originally issued to Bunker Hill Mining Company in 1977. The permit expired in 1981, and Ecology has administratively extended the permit since that time. Ecology issued the 2004 permit as a renewal of the original permit, rather than as issuance of a permit for a new source or new discharge.
[4]
The
mine operated from 1952 until 1977, with intermittent periods of
inactivity. Since 1977, various mining
corporations have considered future mining plans. The Bunker Hill Company owned the mine at the time of closure in
1977. Between 1977 and 1986, Bunker
Hill Company, Pintlar, and GRC Exploration continued exploration in the area
and operated pumps to prevent flooding of the mine by groundwater. The mine was
allowed to flood between 1986 and 1988.
In 1988, Resource Finance Corporation (RFC) obtained an option to
purchase the property from Pintlar. RFC dewatered the mine and completed a
feasibility study for mining and milling. In 1990, RFC purchased the mine and
mill, and 13,000 acres of minerals holdings in the district. In 1992, RFC
initiated the environmental review process for reopening the mine and milling
facilities. However, in 1994, RFC
abandoned permitting for the proposed operations. TCA purchased the Pend
Oreille Mine in 1995. In 1998, TCA initiated the environmental review and
permitting process for reopening the mine and milling site.
[5]
Construction
associated with the reopening of the operations included a lined tailings
disposal facility, two ventilation shafts, additional roads, tailings slurry
and reclaimed water lines, mill water line, an addition to the existing mill
building, and a water storage tank. The
prior NDPES permit authorized discharge from four separate outfalls, while the
2004 NPDES permit authorized discharge from a single outfall. The 2004 NPDES Permit has discharge limits
equal to or more stringent than the prior permit, and includes limits for a
number of constituents not included in the prior permit.
[6]
The final list of appeal issues based
on the Board’s Third Prehearing Order is as follows:
1. Whether the Washington State
Department of Ecology (“Ecology”) improperly relied on an outdated AKART
analysis as the basis for authorizing a pollution mixing zone in violation of
the Clean Water Act, 33 U.S.C. § 1251 et
seq. and state water quality standards, WAC 173-201A-100.
2. Whether Ecology improperly
failed to minimize the size of the mixing zone and the concentrations of
pollutants present in the mixing zone, in violation of the Clean Water Act, 33 U.S.C.
§ 1251 et seq. and state water quality standards, WAC 173-201A-100.
3. Whether a mixing zone can
properly be authorized for bioaccumulative pollutants. 33 U.S.C. § 1251 et seq.
4. Whether the NPDES permit improperly allows
the parties to the permit to modify the permit based on information provided by
the permittee without implementing the modification procedures required by
state and federal law.
5. Whether Ecology complied with all procedural
requirements for drafting and issuing the NPDES permit in violation of the
Clean Water Act, 33 U.S.C. § 1342(a) and WAC Title 173, specifically:
a. Whether the NPDES permit
should have been treated as a new permit or a permit renewal.
b. Whether Ecology failed to
properly address and implement a compliance schedule.
c. Whether the original NPDES
permit was properly transferred to TCA.
d. Whether Ecology improperly
allowed the permittee to modify terms of the permit in violation of the
procedures mandated by law.
6.
Whether the NPDES permit allows the degradation of existing
characteristic and beneficial uses of the Pend Oreille River in violation of
federal and state antidegradation policies set forth in 33 U.S.C. § 1313; 40
C.F.R. § 131.12; RCW 90.54.020; WAC 173-201A-070.
7. Whether the NPDES permit properly allows for the discharge of pollutants into the Pend Oreille River which the state of Washington has listed as water quality limited pursuant to section 303(d) of the Clean Water Act. 33 U.S.C. § 1313(d).
[7]
Motions for Partial Summary Judgment
have been filed with the Board by OHA on issue 4 (whether permit allows
improper modification), issue 5(a) (new permit or a permit renewal), issue 5(b)
(compliance schedule), issue 5(c) (permit transfer), and issue 6 (federal and
state antidegradation policies). OHA
and TCA filed cross motions for partial summary judgment on issue 5(d) (prior
improper modification of permit).
[8]
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, 531 P.2d 299 (1975). In a summary
judgment proceeding, the moving party has the initial burden of showing that
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, 569 P.2d 1152 (1977).
If a moving party does not sustain
its burden, summary judgment should not be granted, regardless of whether the
nonmoving party has submitted affidavits or other evidence in opposition to the
motion. [Citation omitted.] Only after
the moving party has met its burden of producing factual evidence showing that
it is entitled to judgment as a matter of law does the burden shift to the
nonmoving party to set forth facts showing that there is a genuine issue of
material fact.
Hash v. Children’s
Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). In ruling on a motion for summary judgment,
the Court must consider all of the material evidence and all inferences
therefrom in a manner most favorable to the non-moving party and, when so
considered, if reasonable persons might reach different conclusions, the motion
should be denied. Id.; Wood v. Seattle, 57 Wn.2d 469, 358 P.2d 140 (1960). If, on a motion for judgment on the
pleadings, “matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and disposed
of as provided in rule 56.”
CR 12 (c). Accordingly, the analysis
will proceed in a manner similar to a motion for summary judgment.
COMPLIANCE SCHEDULE AND ANTI-DEGRADATION – Issues 5(b) and 6
[9]
OHA seeks summary
judgment on issue 5(b), regarding the validity of the compliance schedule in
the NDPES Permit, and issue 6, regarding compliance with anti-degradation
policies. OHA raises a number of
arguments regarding the compliance schedule issue, including the relationship
between the length of the compliance schedule and the expected length of the
mining activity, the status of the Pend Oreille River on the § 303(d) list, and
the project’s history of meeting temperature requirements. Ecology and TCA have established disputed
factual issues regarding the compliance schedule. Summary judgment on issue 5(b) is denied, and the issue will be
decided after the hearing. Similarly,
issue 6 regarding anti-degradation involves disputed factual issues and will
proceed to hearing.
PERMIT RENEWAL OR NEW
SOURCE/DISCHARGE – Issue 5(a)
[10]
OHA argues that the
NPDES permit for the Pend Oreille Mine must be a new permit, rather than a
renewal of the previous permit. OHA
argues that the discharge is different both in quality and quantity than the
discharge authorized in the prior permit, and that a permit renewal cannot
occur because the underlying NDPES permit was no longer valid due to improper
permit modification and transfer.
Ecology and TCA respond that the facility and discharge do not meet the
definition of either “new source” or “new discharger,” that the discharge is
not different than under the prior NPDES Permit, that the prior NDPES Permit
was properly transferred, and that only the validity of the 2004 NDPES Permit
appealed by OHA, not prior versions of or modifications to the permit are
within the Board’s jurisdiction in this appeal.
CLEAN WATER ACT PROVISIONS
[11]
Clean Water Act regulations define “new source” and “new discharger.” Under Clean Water Act definitions, a “new source” means “any building, structure, facility, or installation from which there is a discharge of pollutants, the construction of which commenced:
(a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or
(b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal.
40 C.F.R. § 122.2
Section 306 of the Clean Water Act provides the definition of “new source” on which this regulation is based. 33 U.S.C. § 1316(a)(2). See also Save Lake Sammamish v. Ecology and WSDOT, PCHB No. 95-141, Order Granting Partial Summary Judgment, at IX (1996). The EPA’s “new source” definition was upheld in Natural Resources Defense Council v. EPA, 822 F.2d 104 (D.C. Cir. 1987). Section 306 of the CWA also requires adoption of water quality performance standards for certain new sources. New source performance standards for lead and zinc ore mining were promulgated in 1988. 40 C.F.R. § 440.104, 53 Fed. Reg. 18788. The first NPDES Permit for the Pend Oreille Mine was issued in 1976. Thus, because the “discharge of pollutants” occurred prior to the adoption of the NSPS for lead and zinc mining, the Pend Oreille Mine does not meet the definition of “new source” in 40 C.F.R. § 122.2.
[12]
“New discharger” means “any building, structure, facility, or installation:
(a) From which there is or may be a “discharge of pollutants;'' (b) That did not commence the ”discharge of pollutants'' at a particular “site'' prior to August 13, 1979; (c) Which is not a “new source;'' and (d) Which has never received a finally effective NDPES permit for discharges at that “site.''40 CFR § 122.2. The Pend Oreille Mine does not meet the definition of “new discharger” in 40 C.F.R. § 122.2 because it had a discharge at the site prior to 1979 (criteria b), and received an NPDES discharge for the site (criteria d).[13]
In
its reply brief, OHA argues that “because the mine ceased active operations in
1977 and because new construction activities have occurred in preparation of
reactivating the mine subsequent to 1988, the Pend Oreille Mine does qualify as
a new source.” Reply Brief at
3. In its initial motion, OHA argued
that the permit for the mine should be a new permit, not a permit renewal,
because the discharge from the reactivated mine is new or different from the
previous discharge. The argument that
construction activities at the Pend Oreille Mine should be considered in
determining whether the discharge may be a “new source” was raised for the
first time in OHA’s reply brief. “[A] reply brief is a defensive pleading and is not the appropriate
forum for raising new legal arguments or factual matters.” Olympia and Vicinity Building and
Construction Trades and Affiliated Unions v. Ecology and Cardinal FG, PCHB
No. 04-147, fn. 9, citing Cowiche Canyon Conservancy v. Bosley, 108 Wn.2d 801, 809 (2002)
(an issue raised and argued for the first time in a reply brief is
too late to warrant consideration).
[14]
Neither Ecology nor TCA have had the opportunity to respond to OHA’s argument that construction activities at the mine may result in the discharge being considered a new source. Further, though not cited by the parties, the Board notes that 40 C.F.R. § 122.29(b)(3) may also be a relevant in determining whether the Pend Oreille Mine is a “new source.” 40 C.F.R. § 122.29(b)(3) states:Construction on a site at which an existing source is located results in a modification . . . rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, replaces, or adds to existing process or production equipment. The subsection reference is to 40 C.F.R. § 122.29(b)(1)(ii) or (iii), which states that an existing source may be considered a “new source” if:
(ii)
It totally replaces the process or production equipment that causes the discharge
of pollutants at an existing source; or
(iii) Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.
Page 4 of the Fact Sheet for the NDPES Permit briefly describes the “construction on a site at which an existing source is located,” and the declaration of Patrick Hallinan describes a change from four outfalls to a single outfall but does not discuss any related construction. None of the parties discussed 40 C.F.R. § 122.29(b)(3) or (b)(1)(ii) and (iii), or presented any undisputed facts that would enable the Board to apply these provisions.
[15]
Further, General Condition G.2 of the prior NPDES Permit states:
Any anticipated facility expansion, production increase or process modification which will result in a new or increased discharge of pollutants must be reported to the Department by submission of a new application or supplement thereto; or, if such discharge will not violate effluent limitations specified herein, by submission to the Department of notice of such new or increased discharge.
Haller Dec., Ex. G-2. This permit provision relates to the same factual inquiry required in 40 C.F.R. § 122.29 regarding facility or process changes that may be relevant in concluding whether a “new source” or “new discharge” exists.
Consequently, the Board concludes as a matter of law that the Pend Oreille Mine is not a “new source” or “new discharge” as those terms are defined in 40 C.F.R. § 122.2. However, the Board cannot determine on summary judgment whether the Pend Oreille Mine may be a new source under 40 C.F.R. § 122.29, because the issue of construction activities was raised for the first time in OHA’s Reply Brief, none of the parties addressed 40 C.F.R. § 122.29, and there is an insufficient factual record before the Board on this issue. In addition, Ecology and TCA established that there are material facts in dispute as to whether the discharge authorized from the Pend Oreille is different in quality or quantity than the previously authorized discharge. Thus, any change in the nature of the discharge, and how it relates to whether the Pend Oreille Mine should be considered a “new source,” will go to hearing.
TRANSFER OF NDPES PERMIT TO TCA – Issue 5(c)
[16]
OHA
asserts that the original NPDES Permit was improperly transferred to TCA, and
that consequently the permit lapsed. As
a result, TCA argues, Ecology could only issue a new permit, not a permit
renewal, because only valid NDPES permits can be renewed. Ecology and TCA disagree, arguing that TCA
fulfilled the permit transfer requirement of WAC 173-220-200, and that the
validity of any prior permit transfers are beyond the scope of the appeal of
the 2004 NDPES Permit.
[17]
Under
WAC 173-220-200(1), an NPDES permit can be transferred in two ways. First, a permit can be automatically
transferred to a new discharger if:
(a)
A written agreement between the old and new discharger containing a specific
date for transfer of permit responsibility, coverage, and liability is
submitted to the director; and
(b) The director
does not notify the old and new discharger of his/her intent to modify, or
revoke and reissue the permit. If this notice is not given, the transfer is
effective on the date specified in the agreement mentioned in (a) of this
subsection.
In this case, TCA’s
predecessors Cominco American and Resource Finance Incorporated entered into a
written merger agreement through which Cominco American became the owner of all
of Resource Finance Inc.’s rights, property, debts, and obligations as of
December 31, 1996. This merger
agreement was filed with the Washington Secretary of State’s Office, and a copy
sent to Ecology. It is unclear to the
Board whether Cominco American is the same corporate entity as Teck Cominco
American, Inc., the permit holder in this appeal. Thus, the facts before the Board are insufficient at this point
to establish permit transfer under WAC 173-220-200(1). Further, as discussed below, OHA’s claims
regarding permit transfer under WAC 173-220-200(1) and the “chain of privity”
between TCA and all previous holders of the NDPES permit are beyond the Board’s
jurisdiction to review.
[18]
An NPDES
permit can also be transferred pursuant to WAC 173-220-200(2). This provision states:
(2) Unless a permit is automatically transferred according
to subsection (1) of this section, a permit may be transferred only if modified
or revoked and reissued to identify the new permittee and incorporate such
other requirements as may be necessary.
OHA does not dispute
that the 2004 NDPES Permit modifies the prior NDPES permit by adding
limitations for cadmium, oil and grease, and temperature, and by including more
stringent limits for copper and zinc.
The 2004 NPDES Permit also identifies TCA as the new permittee. Thus, the Board concludes the prior NPDES
permit was properly transferred to TCA under WAC 173-220-200(2). Because the permit was lawfully transferred
under WAC 173-220-200(2), and because the Board’s scope of review does not
include the validity of all prior permit transfers, the Board also does not
reach issues regarding the consequences of improper permit transfers in the
context of subsequent NPDES permitting procedures.
ADMINISTRATIVE PERMIT EXTENSIONS
[19]
OHA argues that the underlying NPDES permit is invalid and cannot be issued as renewal to TCA because the prior NDPES permit was unlawfully administratively extended. 40 C.F.R. § 122.6(4)(d) provides that “[s]tates authorized to administer the NPDES program may continue either EPA or State-issued permits until the effective date of the new permits, if State law allows.” The Washington Administrative Procedures Act includes such a provision at RCW 34.05.422(3), which states:
When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, an existing full, temporary, or provisional license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court. Ecology used this provision of the APA to extend the prior NDPES permit. [20] OHA did not file an appeal of any of the prior administrative extensions as part of this appeal. However, OHA argues that ONRC Action v. Columbia Plywood, 286 F.3d 1137, 1145 (9th Cir. 2002) requires that the prior administrative extensions of TCA’s NDPES Permit be invalidated now. OHA reasons that because the extensions lasted more than five years, that TCA’s 2004 NPDES Permit must be issued as a new permit rather than as a permit renewal because the preceding permit extensions were unlawful. The ONRC Action case involved a challenge to an untimely application for administrative extension of an NPDES Permit issued by the Oregon Department of Environmental Quality (“DEQ”) under the citizens suit provisions of the Clean Water Act. In that case, the 9th Circuit certified certain questions of Oregon law to the Oregon State Supreme Court, and after doing so, issued a narrow opinion as follows:We merely hold that, consistent with the Oregon Supreme Court’s answer to our certified question, DEQ acted within its authority by accepting Columbia Plywood’s untimely renewal application, an act which had the effect of placing Columbia Plywood’s renewal application on a par with a timely filed application.ONRC Action, 286 F.3d at 1142.
[21] The Court also stated that its opinion “does not address the legal merits of [the validity of the administrative extension for more years than the permit term] and should [not be read] as precedent regarding the issue . . . .” Circuit Judge Reinhardt, in a concurring and dissenting opinion, stated that “without deciding the maximum length of time that the DEQ may allow an expired permit to remain effect,” that Columbia Plywood’s permit shield did not last more than five years. Id. at 1146. Thus, the ONRC Action majority did not reach the issue of the validity of administrative permit extensions beyond five years, and the concurrence-dissent reached the issue in the context of the permit shield, not whether a previously administratively extended permit could be processed as a renewal, rather than as a new permit.[22]The ONRC Action case is also distinguishable because it involved a challenge to the administrative extension of an NDPES Permit through a Clean Water Act citizen suit. In contrast, the appeal before the Board is an appeal of the issuance of the 2004 NPDES Permit, not an appeal of any of the administrative extensions. NDPES permit appeals to the Board and Clean Water Act citizen suits in federal district court are different in many respects, including the time period for filing appeals and the jurisdiction of the reviewing body. In Airport Communities Coalition and Citizens Against Sea-Tac Expansion v. Ecology and Port of Seattle v. Ecology, PCHB Nos. 03-140, 141, & 142 (2004), the Board dealt with a challenge to an individual NDPES Permit including related claims that the prior NPDES permit was unlawful. In that case, the Board concluded that the only NDPES permit before the Board on appeal was the current NPDES permit, not prior versions. This is consistent with jurisdictional requirements before the Board, which is limited to appeals of permit decisions or orders filed with the Board within thirty days after the date of receipt of the order. RCW 43.21B.310(1).
[23] The Board’s review of NPDES permits certainly includes considering prior permits in order to compare permit provisions with those in the permit on appeal; but the Board is without authority to invalidate permits that are no longer appealable to the Board. Finally, while Ecology argued that the administrative extension of an NPDES permit would be “other agency action” appealable to Superior Court under RCW 34.05.570(4), such an appeal would be filed with the Board as the administrative extension of an NDPES permit is within the Board’s jurisdiction in RCW 43.21B.310(1). While RCW 34.05.422(3) establishes the general provisions for administrative extension of a license or permit by any state agency, the underlying authority to extend a Clean Water Act NPDES permit is in 40 C.F.R. 122.6(4)(d). The administrative extension of an NPDES permit, then, would be appealable to the Board in the same manner as the issuance of an NPDES permit.[1] Ecology recently adopted a policy regarding administrative permit extensions that includes public notice of such extensions. [24]Ecology is correct that an appeal of an agency’s failure to act would fall under the appeal of the agency inaction provision of RCW 34.05.570(4)(b), and would be appealable to Superior Court. See Northwest Ecosystem Alliance v. Forest Practices Board, 149 Wn.2d 67, 77-79 (2003). Because the Board does not reach issues regarding the prior administrative extensions of TCA’s NPDES permit, it does not reach issues regarding the consequences of unlawful administrative permit extensions in the context of subsequent NPDES permitting procedures.
PRIOR ACTIONS ON PERMIT – Issue 5(d).
[25]OHA argues that Ecology and/or TCA unlawfully modified the terms of the prior NPDES permit, and that the illegal modification resulted in invalidating the entire permit. As a consequence, OHA argues, the 2004 NPDES permit must be issued as a new permit, rather than a renewal. TCA moves for summary judgment on this issue as well, on the basis that actions on a prior version of the NPDES permit are beyond the Board’s jurisdiction in this appeal. The actions in question date back to 1989, at which time a consultant to the Pend Oreille Mine sent a letter to Ecology with discharge and monitoring provisions for mine dewatering, including a table indicating that the discharge range for pH would be between 6.0 and 9.0. Dec. of Peter Haller, Ex. 5. Ecology responded by letter indicating the dewatering proposal was acceptable and that it be considered part of the NPDES Permit. Haller Dec., Ex. 6. At the time, the pH range in the NPDES Permit was 6.5 to 8.5, not the 6.0 to 9.0 stated in the letter from the Pend Oreille Mine. Haller Dec., Ex. 2.
[26] OHA cites WAC 173-220-180(3)(a) for the proposition that “an NPDES Permit cannot be renewed unless the underlying permit is valid.” OHA also argues that both the modification of the pH level in the permit and “subsequent elevated discharge levels have the effect of proscribing Ecology from processing TCA’s permit application as one for a renewal as opposed [to one] for an application for a new source permit.” OHA’s Response Brief on Issue 5(d), at 2. [27] Ecology and TCA argue that the correspondence in 1989 did not result in an actual modification of the NPDES Permit because permit modification procedures were not followed, and any change to a permit that does not follow required procedures is unlawful and unenforceable. Correspondence from TCA to Ecology with Discharge Monitoring Reports in 2003 indicates TCA was operating under the belief that the upper limit of the its pH range was 8.5 as stated in the prior NPDES Permit, not 9.0 as stated in the 1989 letter: “In addition, pH values for April 28th, May 05th, and May 12th were 8.54, 8.84 and 8.91 respectively, which were above the 8.5 pH effluent limit.” OHA Ex. 18 at 3. [28]
OHA’s argument that WAC 173-220-180(3)(a) means “an NPDES Permit cannot be renewed unless the underlying permit is valid” is incorrect. Rather, this regulation states that in reissuing an NPDES Permit, Ecology must insure “that the permittee is in substantial compliance with all of the terms, conditions, requirements and schedules of compliance of the expired permit.” Thus, WAC 173-220-180(3)(a) concerns whether the Permittee is in substantial compliance with the permit, not whether the underlying permit itself is valid. OHA’s construction of this regulation would require that every NPDES renewal process determine the validity of the underlying and expiring NPDES permit for which the appeal period has passed.
[29]In response to TCA’s argument that the prior actions on the pH level in the permit are moot in the appeal of the 2004 NPDES permit, OHA also argues that the Board could grant relief through a remand or declaratory ruling under the public interest exception to mootness. OHA correctly notes that “Under the public interest exception to mootness, an issue is not moot “where the issue is of public interest, an authoritative determination is desirable to provide future guidance to public officers and the issue is likely to occur.” Ad Hoc Coalition of Willapa Bay v. Ecology, PCHB No. 00-115 (2001), citing Hart v. DSHS, 111Wn.2d 445, 448 (1988). In this case, there is no lack of authoritative guidance nor evidence the issue is likely to occur. Ecology acknowledges that the exchange of letters in 1989 did not serve to modify or amend the NPDES permit, and that a change to effluent limits must follow required procedures. Thus, the Board will not invoke the public interest exception to mootness on this issue.
[30] Because the actions taken in 1989 relating to the pH range are beyond the Board’s scope of review, the Board does not address the issue of whether a modification in the pH range authorized by the NPDES Permit actually occurred, or what the consequences of an unlawful permit modification would be in the context of a subsequent permit renewal. It is important to note in this case, that the pH range in the 2004 NPDES Permit is the same as that established in the 1976 NPDES Permit. The wider range identified in the 1989 letter is not incorporated into the 2004 NPDES Permit.[31]Consistent with the conclusion that actions taken in 1989 regarding the pH range are beyond the Board’s scope of review in this appeal, OHA’s claims that the “chain of privity” to the NPDES permit are also beyond the Board’s scope of review. As stated earlier, the Board concludes that the permit was properly transferred to TCA under WAC 173-220-200(2).
UNILATERAL PERMIT MODIFICATION – Issue 4. [32] OHA argues that the 2004 NPDES Permit allows unilateral modification of permit terms without following required permit modification procedures. Specifically, OHA challenges condition S.10 of the 2004 NPDES Permit that states: “The permittee shall continue to operate the full scale sulfate reducing bacteria treatment system, unless written approval is received from the Department to discontinue the operation of this system.” OHA argues this provision violates WAC 173-220-190(3), which states:The department shall modify or revoke permits only after public notice and opportunity for public hearing as provided in this chapter in those instances where change are proposed which lessen stringency of effluent limitations . . . OHA also argues that permit terms stating a permittee must take a certain action “unless otherwise authorized by Ecology” have been invalidated by the Board in Puget Soundkeeper Alliance v. Ecology, PCHB No. 02-162 (2003) and ACC/CASE/Port of Seattle v. Ecology, PCHB No. 03-140/141/142 (2003).
[33]
Ecology and TCA respond that the
language in S.10 must be read in the context of the entire provision, and in
concert with permit provision G.3, which applies to all permit
modifications. Ecology and TCA argue
that the provisions invalidated by Board in the Port of Seattle and Puget
Soundkeeper cases are different from those at issue here, because the
Sulfate Bacteria Reduction technology in S.10 is subject to the June 1, 2005,
AKART engineering report deadline and June 1, 2006, AKART implementation
deadline. OHA agrees that while statutory
construction principles may apply to interpret permit provisions, this could
mean the specific provision of S.10 govern over the general provision of
G.3. OHA also argues that while the
factual situations in the Port of Seattle and Puget Soundkeeper
cases may have differed, that the permits at issue both contained the identical
modification provision used in G.3 of TCA’s 2004 NPDES Permit, and the Board
nonetheless invalidated the permit provisions stating that permittees would
take a certain action “unless otherwise allowed by Ecology.”
[34]
On its face, S.10 appears to
conflict with the Board’s decisions in Port of Seattle and Puget
Soundkeeper regarding unilateral modification of permit terms. Further, the need to resort to dueling
statutory construction principles to understand a fundamental provision of the
permit is problematic. Overall, it is
unclear to the Board how the SRB treatment system relates to the AKART
engineering report and implementation in S.10 and it appears unknown at this point
whether actions relating to the SRB treatment system will be major or minor
permit actions. Thus, the Board will
deny summary judgment on the basis of disputed material facts and will rule on
issue 4 after the hearing.
[35]
Based on the foregoing analysis,
the Board enters the following
ORDER
DONE this 12th day of April, 2005.
POLLUTION
CONTROL HEARINGS BOARD
BILL CLARKE, Presiding
WILLIAM H. LYNCH, Chair
DAVID
W. DANNER, Member
[1] Ecology adopted a policy regarding administrative extension of NPDES permits in 2000. The details of that policy were not provided to the Board, but Ecology stated that “the draft renewal permit goes through the public permit process allowing members of the public to review and provide input.” See Declaration of Pat Hallinan. What is not clear is whether public notice of the final issuance of the administrative extension is provided. Without such notice, Ecology’s promise of the right to appeal an administrative extension would be hollow.