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Dioxin/Organochlorine Center v. Boise Cascade Corp.

March 6, 1997

DIOXIN/ORGANOCHLORINE CENTER, COLUMBIA RIVER UNITED, AND PUGET SOUND ALLIANCE, AND POLLUTION CONTROL HEARINGS BOARD, WASHINGTON STATE DEPARTMENT OF ECOLOGY, MARY RIVELAND, IN HER OFFICIAL CAPACITY AS DIRECTOR OF WASHINGTON STATE DEPARTMENT OF ECOLOGY, RESPONDENTS,
v.
BOISE CASCADE CORP., GEORGIA-PACIFIC CO., ITT RAYONIER, INC., JAMES RIVER II, INC., LONGVIEW FIBRE CO., AND SCOTT PAPER CO., APPELLANTS.



Appeal from Superior Court of Thurston County. Docket No: 93-2-00534-0. Date filed: 08/18/95. Judge signing: Hon. Paula K. Casey.

Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Barbara A. Madsen, Gerry L. Alexander. Dissenting: Charles W. Johnson, Philip A. Talmadge, Richard P. Guy, Charles Z. Smith.

The opinion of the court was delivered by: Sanders

En Banc

SANDERS, J. We hold that actions which are categorically exempt from review under the State Environmental Policy Act are in fact exempt.

Boise Cascade Corporation and other pulp and paper mills (mills) appeal a superior court order remanding reissuance of their mills' waste water discharge permits to the Pollution Control Hearings Board to determine whether these permits constitute a "major action" under the State Environmental Policy Act (SEPA), RCW 43.21C.110(1)(a), notwithstanding their categorical exemption. WAC 197-11-855(1) (hereinafter "categorical exemption"). The mills claim this is error, asserting "categorical exemption" means just that. Because of the great public importance for a reliable system of categorical exemptions, and the need for the orderly and cost effective administration of SEPA, we granted direct review and reverse, holding actions classified as categorically exempt are immune from SEPA review.

Although this case is now moot, the issues have been well briefed and we reach the merits because the reliability of the system of categorical exemptions under SEPA is a matter of continuing and substantial public interest requiring our determination. STATEMENT OF FACTS

The Pollution Control Hearings Board (PCHB) and the Thurston County Superior Court did not reach any of the factual issues or make any factual determinations regarding the SEPA claims. The SEPA issues were decided below solely as a matter of law. Procedural History The procedural history of this case is long and convoluted. The Department of Ecology (hereinafter "Ecology") reissued National Pollutant Discharge Elimination System (NPDES) permits to the mills between May and July 1991. Both the mills and environmental advocacy groups (hereinafter "Dioxin") cross-appealed various aspects of the permits. This is the third time issues involving these particular permits have come before this court.

In the first case, Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash. 2d 640, 835 P.2d 1030 (1992), the mills challenged Ecology's adoption of the numeric water quality standards and permit conditions limiting dioxin levels. The mills appealed to the PCHB and Dioxin intervened. The PCHB vacated the standards set by Ecology limiting dioxin levels in the mills' permits. Ecology then appealed to the Thurston County Superior Court which affirmed the PCHB and invalidated the dioxin limitation rule because Ecology failed to follow proper rule-making procedures. This court accepted direct review and affirmed. Simpson, 119 Wash. 2d 640, 835 P.2d 1030.

In the second case, Dioxin/Organochlorine Ctr. v. Department of Ecology, 119 Wash. 2d 761, 837 P.2d 1007 (1992), Dioxin/Organochlorine Center, Columbia River United, Inc. and Puget Soundkeeper Alliance (collectively "plaintiffs" or "Dioxin I") commenced a two-pronged attack alleging that Ecology improperly failed to conduct a SEPA review prior to issuance of the NPDES permits to the mills. In its first prong Dioxin filed a complaint in Thurston County Superior Court seeking declaratory and injunctive relief. The superior court dismissed Dioxin's complaint for failure to exhaust administrative remedies. This court accepted direct review and affirmed, dismissing the case. Dioxin I, 119 Wash. 2d 761, 837 P.2d 1007.

But under the second prong Dioxin appealed issuance of one permit to the Pollution Control Hearings Board (PCHB), as a protective measure. The instant case results from this second prong of Dioxin's attack. Dioxin challenged Ecology's reissuance of one mill's NPDES permit on SEPA grounds and intervened in the other mills' NPDES permit appeals. On May 15, 1992, the PCHB determined that DOE's regulatory exemption for waste discharge permits "[was] reasonably consistent with SEPA as a matter of law," and granted partial summary judgment to Ecology on the SEPA claims. Clerk's Papers at 11, Partial Summ. J. Order, PCHB No. 91-140 at 19-20 (5/15/92). Dioxin then appealed PCHB's SEPA ruling to the Thurston County Superior Court which ruled that a categorical regulatory exemption would not prevent SEPA review if shown reissuance of the permits is a major action; i.e., having a probable significant, adverse environmental impact. That court remanded to the PCHB to make the factual determination of whether the reissuance of these permits was a "major action" with significant adverse environmental impacts notwithstanding the categorical regulatory exemptions. The mills sought and obtained direct review from this court.

No factual findings have been made as to whether the reissuance of these permits would be "major actions" having probable significant, adverse environmental impacts.

MOOTNESS

Since the permits at issue have either expired or will soon expire, and the Legislature has amended SEPA to categorically exempt the reissuance of NPDES permits by statute, *fn1 the parties agree this case is technically moot as "A case is technically moot if the court cannot provide the basic relief originally sought," Snohomish County v. State Department of Natural Resources, 69 Wash. App. 655, 660, 850 P.2d 546 (1993) (citing In re Swanson, 115 Wash. 2d 21, 24, 804 P.2d 1 (1990)), review denied, 123 Wash. 2d 1003 (1994), "or can no longer provide effective relief," Snohomish, 69 Wash. App. at 660 (citing In re Cross, 99 Wash. 2d 373, 376-77, 662 P.2d 828.

828 (1983)). However this does not conclude our inquiry.

We may decide a moot case if it involves matters of continuing and substantial public interest. In re Swanson, 115 Wash. 2d at 24.

In determining whether or not a sufficient public interest is involved, a court should consider:

(1) the public or private nature of the question presented; (2)

the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur. Snohomish, 69 Wash. App. at 660 (quoting In re Swanson, 115 Wash. 2d at 25).

Ecology and Dioxin take a narrow view of the issue and argue that determination of this case will not satisfy the second and third criteria because reissuance of NPDES permits will never be challenged under the State Environmental Policy Act again. Ecology contends that since there have been only two other reported cases involving categorical exemptions in the last 13 years, issues involving categorical exemptions are unlikely to recur. On the other hand, the mills argue the Thurston County Superior Court's decision in this case undermines the system of categorical exemptions by inviting case by case review of otherwise categorically exempt actions.

Applying the Swanson criteria, we find: (1) this is a matter of substantial public importance concerning public agency approval of public and private activities affecting the environment; (2) an authoritative determination by this court would provide project proponents, opponents, members of the public, agencies, and lower courts important guidance as to whether case by case review of proposals that fit within valid categorical exemptions is available; and (3) the issue is likely to recur because many permit applications are for categorically exempt activities and, thus, the superior court's action in this case is likely to encourage claims that projects are "major actions" requiring SEPA review. The uncertainty likely to result if "as applied" challenges are brought by new cases could take this court years to resolve, at tremendous expense to all those concerned. Furthermore, we initially accepted review in this case because of the important and unsettled question of whether categorically exempt actions, not merely NPDES permits, are subject to SEPA review and because the substantive issues have been well briefed by the parties and the advocacy is of high quality. Compare Snohomish County, 69 Wash. App. at 661. Therefore, we consider this matter to be of continuing and substantial public interest warranting final resolution and proceed to the merits for essentially the same reasons the Court of Appeals did so in Snohomish County, 69 Wash. App. at 660-61.

Standard of Review

The Thurston County Superior Court interpreted the SEPA statute as requiring case by case review of "major actions" without regard to their categorically exempt status. A court's interpretation of a statute is inherently a question of law; this court reviews questions of law de novo. Smith v. Continental Casualty Co., 128 Wash. 2d 73, 78, 904 P.2d 749 (1995).

SEPA

The central SEPA requirement is a threshold determination of environmental significance and, if an action is significant, the preparation of an environmental impact statement (EIS). RCW 43.21C.030. An EIS "shall be prepared . . . for . . . major actions having a probable significant, adverse environmental impact." RCW 43.21C.031 (Supp. 1995). However, "actions categorically exempt under RCW 43.21C.110(1)(a) do not require environmental review or the preparation of an environmental impact statement under this chapter." RCW 43.21C.031 (Supp. 1995).

The Department of Ecology was directed by the 1983 SEPA amendments to adopt "uniform rules and guidelines" interpreting and implementing SEPA. RCW 43.21C.110(1) (amended by Laws of 1983, ch. 117, sec. 7). That statute defines Ecology's rule-making authority to include, but not be limited to:

Categories of governmental actions which are not to be considered as potential major actions significantly affecting the quality of the environment . . . . The types of actions included as categorical exemptions in the rules shall be limited to those types which are not major actions significantly affecting the quality of the environment. The rules shall provide for circumstances where actions which potentially are categorically exempt require environmental review. An action that is categorically exempt under the rules adopted by the department may not be conditioned or denied under this chapter. RCW 43.21C.110(1)(a) (Supp. 1995) (emphasis applied to language added by amendment (Laws of 1995, ch. 347, sec. 206)). *fn2

SEPA Rules

RCW 43.21C.110(1)(a) categorically exempts a proposal if it fits within any of the provisions "in Part Nine of [the SEPA] rules," WAC 197-11- 305(1), unless (1) the proposal is not exempt under WAC 197-11-908, which applies to "environmentally sensitive areas," WAC 197-11-305(1)(a), or (2) the proposal is a segment of a series of actions categorically exempt in part or is a segment of a series of exempt actions that together may have a probable significant, environmental impact. WAC 197-11-305(1)(b)(i), (ii).

Categorical exemptions are set forth in WAC 197-11-800 through 890. Such actions do not require threshold determinations of environmental significance or preparation of an EIS, subject to the limitations of WAC 197-11-305. WAC 197-11-800. These categorical exemptions cover a broad range of government agency actions approving public and private activities, such as:

(1) Minor new construction Flexible thresholds.

(b) The following types of construction shall be exempt, except when undertaken wholly or partly on lands covered by water:

(i) The construction . . . of four dwelling units.

(ii) The construction of a barn . . . .

(iii) The construction of an office, school commercial, recreational, service or storage building with 4,000 square feet of gross floor area . . . .

(iv) The construction of a parking lot designed for twenty automobiles.

(v) Any landfill or excavation of 100 cubic yards . . . .

(2) Other minor new construction. . . . bus stops, . . .

minor road . . . improvements, . . .septic tank ...


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