Individual v. The Wash. State Dep't Of Ecology

• Citation: 157 Wash.App. 629,238 P.3d 1201
• Decision Date: 09 November 2010
• Docket Number: No. 39691-2-II.,39691-2-II.
• Court: Court of Appeals of Washington
• Parties: PACIFIC TOPSOILS, INC., a Washington Corporation, Appellant, Dave Forman, an individual, Plaintiff, v. The WASHINGTON STATE DEPARTMENT OF ECOLOGY, a Division of the State of Washington, Respondent.

157 Wash.App. 629

238 P.3d 1201

PACIFIC TOPSOILS, INC., a Washington Corporation, Appellant,Dave Forman, an individual, Plaintiff,

v.The WASHINGTON STATE DEPARTMENT OF ECOLOGY, a Division of the State of Washington, Respondent.

No. 39691-2-II.

Court of Appeals of Washington,Division 2.

Aug. 24, 2010.

As Amended on Denial of Reconsideration Nov. 9, 2010.

Jane Ryan Koler, Law Office of Jane Ryan Koler PLLC, Gig Harbor, WA, for Appellant.

Joan Margaret Marchioro, Wa. State Atty General's Ofc./Ecology Div., Olympia, WA, for Respondent.

PART PUBLISHED OPINION

WORSWICK, J.

¶ 1 Pacific Topsoils, Inc. (PTI) appeals from a Pollution Control Hearings Board (Board) order upholding fines assessed against PTI by the Washington State Department of Ecology (DOE) for filling wetlands without proper permits. PTI argues: (1) the DOE lacks statutory authorization to regulate wetlands under RCW 90.48.080; (2) chapter 90.48 RCW and WAC 173-201A-300 are unconstitutionally vague as to filling wetlands; (3) the DOE's Order 4095 and Penalty 4096 violated due process by failing to provide PTI with proper notice of the basis of the fines; (3) the Board violated PTI's due process rights by enforcing arbitrary time limits during its hearing, thus preventing it from cross-examining witnesses and calling surrebuttal witnesses; and (4) several of the Board's conclusions contain errors of law and substantial evidence does not support most of its findings. We reject PTI's arguments and affirm the Board's order.

FACTS

Procedural Facts

¶ 2 PTI, a soil processing company, owns property on Smith Island in Snohomish County. Smith Island has large areas of historically documented wetlands. A wetland study previously performed on Smith Island described it as a “mosaic of wetlands.” Transcript of Proceedings (TP) (Feb. 20, 2008) at 68.

¶ 3 PTI planned to expand its Smith Island operations. As part of its plans, PTI placed approximately 12 acres of fill material on the site without permits of any kind. The fill pile, estimated to be 15 to 17 feet deep and 75,000 to 150,000 cubic yards, would require 15,000 dump truck loads to remove. PTI did not test the fill material for contaminants prior to placing it at the site.

¶ 4 On October 16, 2006, the DOE received a complaint about PTI's activities on Smith Island. The DOE assigned Wetland Specialist Paul Anderson to investigate the complaint. After a site visit on October 27, Anderson determined that PTI had filled wetlands. At the conclusion of his site visit, he informed PTI's Environmental Director, Janusz Bajsarowicz, of his conclusion and requested a wetland delineation. Bajsarowicz informed Anderson that PTI's consulting firm, Parametrix, was preparing a wetland delineation. Over the next four months, the DOE made several requests to PTI for the wetland delineation, but PTI did not provide it.

¶ 5 On March 7, 2007, the DOE issued Order 4095, which stated in pertinent part:

On or before October 17, 2006, approximately 12 acres of fill material was discharged into wetlands at the [PTI] facility on Smith Island, Snohomish County. There is no record at the Department or Snohomish County of the submission of a permit application for the placement of said fill, nor a record of any permit for the placement of fill in the wetlands having been issued. Under RCW 90.48.080 and RCW 90.48.160, it is unlawful to discharge polluting matters into waters of the state without a permit. Discharge of such polluting matters into waters of the state is also a violation of the anti-degradation policy, WAC 173-201A-300.

Administrative Record (AR) at 1602. Order 4095 also stated that the DOE issued it under RCW 90.48.120(2) and specified compliance requirements for PTI.

¶ 6 On the same day, the DOE also issued an $88,000 civil penalty to PTI, Penalty 4096. Penalty 4096 provided that the DOE issued it under RCW 90.48.144(3), and it read in pertinent part:

Prior to January 24, 2006, fill was placed in approximately 12 acres of wetlands at [PTI]'s Smith Island facility without a permit in violation of RCW 90.48.080. Discharge of such polluting matters into waters of the state is also a violation of the anti-degradation policy, WAC 173-201A-300. Fill remains in place in the wetlands. Each and every day the fill remains in the wetlands constitutes a separate and distinct violation of RCW 90.48.080 and 90.48.160, and WAC 173-201A-300.

AR at 1605.

¶ 7 PTI appealed Order 4095 and Penalty 4096 to the Board. The Board's prehearing order, dated May 11, 2007, required the submission of hearing briefs and specified that they not exceed 15 pages. The prehearing order also provided that the parties could obtain relief from the page limit only by motion and set September 6, 2007, as the filing deadline for dispositive motions.

¶ 8 On February 13, 2008, PTI filed a 61 page brief, as well as numerous attachments. The DOE moved to strike the brief for its noncompliance with the prehearing order.

¶ 9 In granting the motion to strike, the Board articulated factors supporting its decision, including that the brief raised constitutional issues outside its jurisdiction and that PTI had not filed any dispositive motions on the legal arguments raised. The Board also identified the purposes of a hearing brief and found that PTI's brief went beyond those purposes. The Board granted the motion to strike but allowed PTI to submit a hearing brief conforming to the prehearing order's page limits.

¶ 10 The Board originally scheduled one day for the hearing but extended the allotted time to two days at PTI's request. During a prehearing conference call, at PTI's request, the Board agreed to provide six hours of hearing time per day, rather than the normal five and one-half hours. The parties agreed to split the allotted time equally, and the Board used a clock to keep track of the time. PTI made no further requests for additional hearing time before the hearing.

¶ 11 At the hearing, the DOE presented its case first, because it bore the burden of proof, and reserved time for rebuttal. After PTI cross-examined the DOE's witnesses; presented its responsive case; and, on the second day, exceeded its allotted time by 25 minutes, the Board on its own motion granted PTI an additional 45 minutes to present its case “in the interests of trying to make sure this is a fair proceeding that allows sufficient time for [PTI] to finish up its case.” TP (Feb. 21, 2008) at 474-75. PTI did not argue that the extra time allotted was insufficient or that it could not present the remainder of its case.

¶ 12 Following presentation of its last witness, PTI rested. PTI did not assert that it needed additional time; instead, it indicated that it would use its remaining time to cross-examine the DOE's rebuttal witnesses. Only after exhausting this remaining additional time did PTI orally request additional hearing time, arguing that it needed this additional time to present surrebuttal witnesses. The Board denied this oral motion and PTI's subsequent written motion for an extension of the hearing.

¶ 13 Ultimately, the Board fully affirmed Order 4095 and Penalty 4096. PTI then appealed the Board's order to the trial court, which affirmed the Board's order in full. The trial court also denied PTI's due process and vagueness challenges. PTI appeals.

Substantive Facts

¶ 14 A wetland is a transitional land that lies between terrestrial and aquatic systems where the water table is at or near the surface or where water covers the land. Three indicators confirm the existence of a wetland: (1) hydrophytic vegetation adapted to saturated soil conditions, (2) hydric soils, and (3) hydrology. WAC 173-22-080(1).

¶ 15 The Washington State Wetland Delineation and Identification Manual requires use of the “atypical situations methodology” for wetland delineation to determine the previous existence of a wetland and to decide where a wetland boundary existed in the past when it is no longer obvious in the present due to unauthorized alteration of one or more wetland indicators. ¹ Because the presence of unauthorized fill material had altered previous site characteristics and conditions, the manual required the use of the atypical situations methodology. Both Anderson and PTI's consultant, Parametrix, used that methodology in their contemporaneous site investigations. Their investigations found the presence of all three wetland indicators.

¶ 16 First, both the DOE and Parametrix wetland specialists determined that, although the vegetation that existed before the fill replacement was no longer present under the fill, the wetland vegetation surrounding the fill represented what once grew on the filled areas. Specifically, the Parametrix report stated:

A distinction between vegetative communities present in undisturbed wetland areas and filled wetland areas was not observed in review of aerial photographs, indicating fill areas previously were vegetated with a similar hydrophytic vegetative community found throughout undisturbed portions of the wetland.

AR at 1645. Additionally, the site contained a small, unfilled area situated within a slight depression and surrounded on all sides by fill material. Observations of its plant species regeneration, buried plant material, and native soil layers, as well as review of historic aerial photographs, established that this small area is a wetland and is representative of the adjacent surrounding land under the fill.

¶ 17 Second, the atypical situations methodology requires a description and analysis of the site alteration and its effects on the soils and a characterization of soils that previously occurred, including the buried soils when fill material has been placed over the original soil. Indicators of hydric soils include observations of surface water or saturated soils and the listing of the soil as a hydric soil.

¶ 18 The National Cooperative Soil Survey describes the soils at the site as Puget silty clay loam, a hydric soil....