ASARCO Inc. v. Air Quality Coalition

• Decision Date: 11 October 1979
• Docket Number: No. 45508,45508
• Citation: 92 Wn.2d 685,601 P.2d 501
• Court: Washington Supreme Court
• Parties: , 10 Envtl. L. Rep. 20,203 ASARCO INCORPORATED, Respondent, v. AIR QUALITY COALITION, an organization, Jane Blakely, an Individual, Jean and Larry Dahl, husband and wife as Individuals, Fran and Bruce Durocher, husband and wife as Individuals, Friends of the Earth, an organization, I.R.A.T.E., an organization, Bart Klein, an Individual, Michael E. Nelson, an Individual, Judy and Richard Schieg, husband and wife as Individuals, Pat Schultz, an Individual, Deborah Anne Shore, an Individual, Carol and Harold Simonsen, husband and wife as Individuals, Tahoma Audubon, an organization, Bill Tobin, an Individual, Washington Environmental Council, a non-profit corporation, and Pat Young, an Individual, Appellants, and Puget Sound Air Pollution Control Agency, Respondent.

Page 685

92 Wn.2d 685

601 P.2d 501, 10 Envtl. L. Rep. 20,203

ASARCO INCORPORATED, Respondent, v. AIR QUALITY COALITION, an organization, Jane Blakely, an Individual, Jean and Larry Dahl, husband and wife as Individuals, Fran and Bruce Durocher, husband and wife as Individuals, Friends of the Earth, an organization I.R.A.T.E., an organization, Bart Klein, an Individual Michael E. Nelson, an Individual, Judy and Richard Schieg husband and wife as Individuals, Pat Schultz, an Individual Deborah Anne Shore, an Individual, Carol and Harold Simonsen, husband and wife as Individuals, Tahoma Audubon, an organization, Bill Tobin, an Individual, Washington Environmental Council, a non-profit corporation, and Pat Young, an Individual, Appellants, and Puget Sound Air Pollution Control Agency, Respondent.

No. 45508.

Supreme Court of Washington, En Banc.

Oct. 11, 1979.

Michael E. Nelson, Deborah A. Shore, Seattle, for appellants.

Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, C. John Newlands, Robert F. Baker, Keith D. McGoffin, Tacoma, for respondent.

STAFFORD, Justice.

Appellants, Michael Nelson and Deborah Shore obtained direct review of a trial court order which vacated an order of the Pollution Control Hearings Board (PCHB) which had, in turn, vacated a resolution by the Puget Sound Air Pollution Control Agency (PSAPCA) granting ASARCO Incorporated (ASARCO) a variance from (PSAPCA's rules and regulations. We reverse the trial court, reinstate the PCHB order, and remand the cause to PSAPCA for further proceedings consistent with this opinion.

PSAPCA is a multi-county corporation with representatives from Pierce, King, Kitsap and Snohomish counties. The Washington Clean Air Act, RCW 70.94, authorizes and requires PSAPCA to protect the environment from adverse effects of Air pollution upon public health, safety and property. PSAPCA is further authorized to adopt and enforce air emission standards. To that end PSAPCA adopted Regulation I in 1968. Section 9.07 of that regulation governs emissions of sulphur dioxide (SO 2) within PSAPCA's jurisdictional area. This section, as amended in 1970, primarily is directed at controlling emissions from the ASARCO plant in Tacoma. The plant emitted 84 percent of all SO 2 emissions within PSAPCA's jurisdictional area at the time § 9.07 was adopted. In 1968 PSAPCA adopted § 9.03 of Regulation I which was designed to govern emissions of all particulate matter. This section, amended in 1973, also was directed primarily at controlling emissions of all particulate matter from ASARCO's Tacoma plant. In September 1973, PSAPCA adopted § 9.19 of Regulation I pertaining to emissions of arsenic-containing In January 1972, ASARCO sought a "variance" claiming it was technologically and economically impossible for the Tacoma plant to operate in compliance with the SO 2 regulation. PSAPCA granted the variance and allowed ASARCO to operate its plant without full compliance with the SO 2 emissions standards until January 31, 1976.

particulate matter. ASARCO's Tacoma plant is the sole source of arsenical emissions within PSAPCA's jurisdictional area and thus is the sole source governed by § 9.19.

On December 5, 1975, shortly before the expiration of the first variance, ASARCO submitted to PSAPCA a second or renewed variance application seeking an exemption from compliance with the particulate, arsenical and SO 2 emissions standards. We assume the second variance or renewal was applied for pursuant to RCW 70.94.181 which governs the application for and granting of variances.

ASARCO's second application requested a variance for a maximum period of 5 years to permit continued operation of the plant thus justifying the expenditures required for Partial compliance. ASARCO pledged to spend approximately $7 million to construct an emissions control improvement program. Improvements made pursuant to the program would facilitate complete compliance with arsenical emissions standards and Varying degrees of compliance with the particulate and SO 2 emissions standards. ASARCO testified that the amount of the promised expenditure would be the maximum it could expend for pollution control improvement during the period of the requested variance and that the duration of the requested variance was the time required to construct the improvements in most cases.

PSAPCA studied the application, held public hearings, and, thereafter, in February of 1976, granted a variance ranging from 24 months to 5 years depending upon the type and source of emissions. Emissions of SO 2 were exempted from compliance for 5 years. The variance was to expire Appellants sought review by the PCHB. ASARCO moved to dismiss the appeal arguing that the PCHB did not have statutory jurisdiction to hear appeals from variances granted by PSAPCA. ¹ The PCHB denied ASARCO's motion.

December 31, 1980. PSAPCA also was called upon to consider whether an Environmental Impact Statement (EIS) should be furnished prior to issuance of the variance. PSAPCA decided that preparation of an EIS would cause a delay adversely affecting the economic interests of ASARCO without providing a corresponding benefit to the surrounding environment. Thus, PSAPCA ruled, an EIS was not required under the State Environmental Policy Act (SEPA). It is of interest, however, that PSAPCA hedged its position as to the need for an EIS. Section 2 of Resolution 359 provides if it "is hereafter determined that an (EIS) is required to be prepared by this Agency, ASARCO will comply with the environmental assessment provision of (SEPA)."

In March 1977, both appellants and ASARCO moved for summary judgment before the PCHB seeking to determine whether PSAPCA should have or did comply with SEPA in granting the variance. Appellants' motion was granted, PSAPCA's variance resolution No. 359 was reversed and the cause was remanded for further proceedings. Subsequently, the trial court entered a judgment vacating PCHB's order 997 and reinstating PSAPCA's variance order of February 1976.

The trial court found the variance would have no significant adverse effect on the existing environment but would, in fact, improve the future quality of the environment. The court further found that PSAPCA had considered all significant subjects which would have been included in an EIS had one been required. Thus, according to the trial court, there was only a minimal likelihood of harm due to the absence of an EIS in the decision-making process through which the variance was granted. Further the trial court ruled that PSAPCA had complied with SEPA to the fullest extent possible in considering the variance request and that the preparation of an EIS would have been duplicative of prior actions. Finally, it was found that refusal of a variance until an EIS was prepared would have forced temporary closure of ASARCO's Tacoma plant with attendant economic and social dislocations.

The trial court concluded, as a matter of law, that comparing the asserted minimal likelihood of environmental harm resulting from the absence of an EIS with the claimed economic and social dislocations that would have been occasioned by the delay necessary to prepare an EIS, justified PSAPCA's determination that an EIS was not required. The trial court also concluded that PSAPCA had complied with SEPA, "to the fullest extent possible" and that the variance did not constitute a "major action significantly affecting the quality of the environment" under RCW 43.21C.030. Further, the court held PSAPCA's action in granting the variance constituted the functional equivalent of an EIS. Finally, having found the preparation of an EIS would have taken a minimum of 5 months, the trial court concluded that in the instant case SEPA directly conflicted with the Washington Clean Air Act, RCW 70.94.181(7). The latter provides "(a)n application for a variance . . . submitted to . . . (PSAPCA) pursuant to this section shall be approved or disapproved by . . . (PSAPCA) within sixty-five (65) days of receipt unless the applicant (ASARCO) and . . . (PSAPCA) agree to a continuance." The trial court held the 65 days limit was mandatory and could not

                be waived by PSAPCA.  2  The trial court also concluded, as a matter of law, that the PCHB had no jurisdiction to hear and decide[601 P.2d 508]  appeals from orders or decisions of PSAPCA on applications for variances.  We reverse the trial court
                

JURISDICTION OF THE PCHB TO HEAR AND DECIDE APPEALS FROM

DECISIONS OF AIR POLLUTION CONTROL AUTHORITIES

GRANTING VARIANCES FROM ITS RULES AND REGULATIONS

The trial court concluded, as a matter of law, that the PCHB "does not have jurisdiction under RCW 70.94, RCW 43.21B, or RCW 41.21C (43.21C) to hear and decide appeals of orders or decisions by PSAPCA . . . which concern or grant variances . . . including orders and decisions made by PSAPCA . . . pursuant to chapter 43.21C RCW in connection with PSAPCA's granting of a variance." Based on the foregoing, and other holdings to be discussed hereafter, the trial court reversed the PCHB's summary order reversing PSAPCA's Resolution 359 which granted the variance. In support of the trial court's holding, ASARCO contends that jurisdiction to hear and decide appeals from PSAPCA's orders or decisions granting variances rests exclusively with the superior courts and that the sole effect of RCW 43.21B is to give PCHB jurisdiction over PSAPCA in regard to appeals from violation orders only. We do not agree and reverse the trial court on this issue.

The purpose of the PCHB is:

(T)o provide for a more expeditious and efficient disposition of appeals with respect to . . . All decisions of air pollution control boards or authorities . . .

(Italics ours.) RCW 43.21B.010.

RCW 43.21B.110 provides for the manner in which appeals before the PCHB shall be carried out so as to effectuate the purpose reflected by RCW 43.21B.010 above.

The hearings board (PCHB) Shall only have jurisdiction to hear and decide...