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Organization to Preserve Agricultural Lands v. Adams County and Waste Management Inc.

filed: March 28, 1996.

ORGANIZATION TO PRESERVE AGRICULTURAL LANDS, A WASHINGTON NONPROFIT CORPORATION, APPELLANT,
v.
ADAMS COUNTY AND WASTE MANAGEMENT, INC., RESPONDENTS.



Superior Court, Whitman (94-2-00024-0) County; Honorable Wallis W. Friel, Judge. Judgment Date: 9-20-94.

Pekelis, J.p.t., Durham, C.j., Dolliver, J., Smith, J., Guy, J., Johnson, J., Madsen, J., Alexander, J., Talmadge, J., concur

Author: Pekelis

En Banc

Pekelis, J.P.T.*fn* -- Organization to Preserve Agricultural Lands (OPAL), a nonprofit corporation, appeals a trial court judgment upholding Adams County's issuance of an Unclassified Use Permit (UUP) authorizing the use of a site in the county for a proposed regional landfill. The trial court concluded that the proposed project is "private," thus the accompanying environmental impact statement need not include consideration of offsite alternatives; that phased review is appropriate for the project and the groundwater studies are adequate for this phase; that the participation of the three Adams County commissioners in the decision did not violate the appearance of fairness; that OPAL lacks standing to challenge the legality of "host fees" under development fee statutes; and that the UUP should not be invalidated based on alleged noncompliance with the Open Public Meetings Act, the public procurement statutes, or the county's solid waste management plan. We affirm.

In 1991, Waste Management of Washington, Inc. (Waste Management) submitted an application to Adams County for a UUP to use certain land in the county for a municipal solid waste landfill and recycling facility. The corporation contemplated that the landfill would receive waste from throughout the Pacific Northwest, including Washington, Idaho, Montana, and Canada. A 340-page draft environmental impact statement (EIS) on the proposal was prepared by Waste Management's consultants and issued by the county in 1992. The county issued a final EIS in 1993.

While they were processing Waste Management's UUP application, the county commissioners were also engaged in the legislative task of developing a comprehensive solid waste management plan (SWMP). The county held hearings and received comments in the planning process from both OPAL members and Waste Management representatives. Waste Management believed that inclusion of a regional landfill option in the SWMP was important because it could negatively affect its ability to obtain an operating permit for the landfill project.

The Board of Commissioners held a series of public meetings on the UUP beginning on December 1, 1993. On January 24, 1994, the commissioners voted two to one (Commissioners Schlagel and Wills voting affirmatively; Commissioner Judd voting negatively) to approve Waste Management's application for a UUP, subject to the conditions contained in a "Mitigation Agreement."

OPAL filed a petition in Whitman County Superior Court to set aside the commissioners' decision granting the UUP. OPAL moved for summary judgment, arguing that the EIS was inadequate as a matter of law for failing to discuss offsite alternatives to the proposed landfill. The trial court denied the motion, concluding that OPAL had failed to establish the proposed landfill was a "public project" under Weyerhaeuser v. Pierce County, 124 Wash. 2d 26, 39-40, 873 P.2d 498 (1994).

Following a bench trial, the court affirmed the decision of the board granting the UUP and dismissed the writ with prejudice. OPAL appealed directly to this court and filed a motion on the merits to reverse, again on the issue of whether the EIS adequately discussed offsite alternatives. This court accepted review but denied appellant's motion on the merits to reverse.

ISSUES

OPAL's appeal presents five issues regarding the validity of the issuance of the UUP by the Adams County Board of Commissioners: (1) is the accompanying EIS adequate, notwithstanding (a) the lack of consideration of offsite alternatives to the proposal and (b) the deferral of additional groundwater impact studies until the operating permit phase; (2) did the manner in which the commissioners decided to issue the UUP violate the Open Public Meetings Act; (3) did the commissioners violate the appearance of fairness by inadequate disclosure of ex parte contacts with the applicants, or by bias and prejudgment; (4) does the UUP comply with the Adams County solid waste management plan; and (5) was the UUP issued in exchange for "host fees" and other payments and services, in violation of both the public procurement law and statutory requirements for voluntary mitigation payments?

ANALYSIS

I.

ADEQUACY OF ENVIRONMENTAL IMPACT STATEMENT

OPAL contends that the EIS is inadequate as a matter of law because it does not include consideration of offsite alternatives to the proposed landfill project and because the analysis of potential impact to groundwater contained in the EIS is inadequate to support the issuance of the UUP. The adequacy of an EIS is a question of law subject to de novo review. Weyerhaeuser, 124 Wash. 2d at 37. At the same time, the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C.010--.914, provides that the decision of an agency regarding the adequacy of an EIS is to be "accorded substantial weight." RCW 43.21C.090. EIS adequacy involves the legal sufficiency of the data in the EIS. Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wash. 2d 619, 633, 860 P.2d 390, amended, 866 P.2d 1256 (1993) (citing Richard L. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis § 14(a)(i) (4th ed. 1993)). Sufficiency of the data is assessed under the "rule of reason," which requires a "'reasonably thorough discussion of the significant aspects of the probable environmental consequences' of the agency's decision." Weyerhaeuser, 124 Wash. 2d at 38 (citations omitted).

A. Failure to Consider Offsite Alternatives

OPAL first contends that the EIS is legally deficient because it does not include analysis of offsite alternatives. The EIS discussed three alternative proposals: a "no-action" proposal and two different configurations of a proposed landfill on the same site. It did not include discussion of offsite alternatives to the proposal.

SEPA requires that an EIS contain a detailed discussion of alternatives to the proposed action. RCW 43.21C.030(c)(iii). SEPA's administrative rules provide that an EIS must consider as alternatives those "actions that could feasibly attain or approximate a proposal's objectives, but at a lower environmental cost or decreased level of environmental degradation." WAC § 197-11-440(5)(b).

Under current administrative rules and case law, whether an EIS must include consideration of offsite alternatives depends on whether the project is public or private. An EIS for a private project on a specific site need only consider a "no action alternative plus other reasonable alternatives for achieving the proposal's objective on the same site." WAC § 197-11-440(5)(d); Weyerhaeuser, 124 Wash. 2d at 39. A public-project EIS must also include a discussion of offsite alternatives to the proposal. Weyerhaeuser, 124 Wash. 2d at 39.

To determine whether a project is public or private, we look first to who sponsored or initiated it because the administrative rules define a "private project" as "any proposal primarily initiated or sponsored by an individual or entity other than an agency." WAC § 197-11-780. The classification rests not on nominal sponsorship but on a factual assessment of the level of public involvement in the project. See Weyerhaeuser, 124 Wash. 2d at 39-40. In this case, we think it clear that the project was primarily sponsored and initiated by Waste Management, a private entity. Contrasting the facts of this case with those of Weyerhaeuser illuminates the private nature of the instant proposal. In Weyerhaeuser, the private corporation acted pursuant to a contract with the county when it sought to develop a new in-county landfill site, id. at 39; Waste Management has no such obligation to develop a landfill for Adams County.*fn1 In fact, Adams County has not yet formally decided to use the proposed facility to meet its own waste disposal needs. The private entity in Weyerhaeuser had a long-standing relationship with the county, including the county's involvement in the formation of the corporation to handle the county's entire solid waste system. Id. Waste Management currently is not involved in handling Adams County's solid wastes nor was the county involved in creating the corporation.

Alternatively, a project may be designated "public" because a government entity seeks to fulfill its responsibility to perform a traditional governmental function through the project. See id. at 40-41. For example, in Weyerhaeuser, we noted that a private company that had been given the job of operating the "'whole Pierce County solid waste system . . .'" was performing a governmental function. Id. at 39 (citation omitted). Thus, even though it was a private company that applied for a conditional use permit to construct a new landfill, id. at 29, we held that the proposed project was "public" because its purpose was to fulfill the County's responsibility for the collection and disposal of solid waste, see id. at 40. This "governmental function" test ensures that a government agency cannot avoid the requirement of environmental consideration of alternative sites by simply contracting with a private entity to carry out its public duty. See id. at 41.

OPAL contends that Weyerhaeuser established a rule of law that an EIS for a landfill project must always include consideration of offsite alternatives. In so contending, OPAL misconstrues our "governmental function" analysis in that case. Our statement that "regardless of whether the County deals with a private company, the collection and disposal of solid waste is the County's responsibility," id. at 41, must be read in context. We were not creating a hard and fast rule that any activity relating to solid waste handling that takes place within a county constitutes a "public project" of that county, even where, as here, it does not even involve disposal of that county's own solid waste. Rather, the key to the analysis is whether the governmental entity has, by means of the project at issue, allowed a private entity to fulfill the government's responsibility for handling the solid waste within its jurisdiction.

Under the "governmental function" analysis, we conclude that the proposed project is not one through which Adams County seeks to perform a traditional government function. Waste Management seeks to build a landfill to serve customers throughout the Pacific Northwest, including Washington, Idaho, Montana, and Canada. Adams County has no governmental responsibility for the solid wastes generated outside of the county, such that this project could be perceived as an attempt to contract with a private entity to fulfill that responsibility. Even were Adams County to decide to use the landfill for the wastes generated in the county, Waste Management estimated that Adams County's solid waste would constitute less than two percent of the anticipated annual volume of wastes disposed of at the facility.

In conclusion, we hold that Waste Management's proposed landfill project was properly characterized as "private," because it was primarily sponsored and initiated by a private entity and is not intended to fulfill the solid waste responsibilities of Adams County. As such, the EIS did not need to include a discussion of offsite alternatives to the proposed development.

B. Adequacy of Groundwater Study

OPAL next argues that the analysis of potential groundwater impact is inadequate. Adams County responds that this proposal is appropriately evaluated in phases and that the analysis of the groundwater issue is sufficient for the siting phase of the permit process. As both parties seem to agree that further study will be required before an operating permit can be issued, we must first decide if "phased review" is appropriate. If so, we must then analyze the contents of the EIS relating to groundwater impact and, under the "rule of reason," giving deference to the commissioners, determine whether it provided sufficient information for them to decide to issue the UUP.

The draft EIS was accompanied by a "draft geohydrological assessment report," which set forth preliminary analysis of the geology and hydrology of the site. Admin. R. at 1762-2408. The purpose of the report was to "determine the general physical conditions at the site." Admin. R. at 1774. The report acknowledged that after site approval, additional studies would be required to "obtain more specific data needed for the detailed design of the facility and its environmental controls." Id. The final EIS contained a summary of the draft geohydrological report, which concluded that "before a permit to operate the landfill will be granted, characterization of the flow path between the base of the landfill and the uppermost monitorable unit at the site, and design of an effective groundwater monitoring system that will identify leaks and provide opportunity for meaningful remediation would be required." Admin. R. at 2547 (emphasis added).

Although SEPA does not discuss the phasing of environmental review, administrative rules provide that review may be phased in some situations. WAC § 197-11-060(5). The purpose of phasing review is to enable agencies and the public to focus on issues ripe for decision and to exclude from consideration issues that are not yet ready. Klickitat, 122 Wash. 2d at 638 (citing WAC § 197-11-060(5)(b)). Phased review is appropriate under the rules when "the sequence is from an environmental document on a specific proposal at an early stage (such as need and site selection) to a subsequent environmental document at a later stage (such as sensitive design impacts)." WAC § 197-11-060(5)(c)(ii). Phased review is not appropriate when "it would segment and avoid present consideration of proposals and their impacts that are required to be evaluated in a single environmental document. . . ." WAC § 197-11-060(5)(d)(iii). Proposals required to be evaluated in one document are those "that are related to each other closely enough to be, in effect, a single course of action . . . ." WAC § 197-11-060(3)(b). "Closely related" proposals are further defined as ones that are "interdependent parts of a larger proposal and depend on the larger proposal as their justification . . . ." WAC § 197-11-060(3)(b)(ii).

Washington courts have approved phased review of environmental impacts in certain situations. For example, this court has approved a "bare bones" EIS that identified the potential impacts of an application for a rezone to allow for construction of residential units. Cathcart-Maltby-Clearview Community Council v. Snohomish County, 96 Wash. 2d 201, 208-11, 634 P.2d 853 (1981). In Cathcart, we held that the EIS was adequate at this ...


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