Care v. State, Dept. of Ecology

• Decision Date: 21 April 2009
• Docket Number: No. 36974-5-II.,36974-5-II.
• Citation: 149 Wn. App. 830,205 P.3d 950
• Court: Washington Court of Appeals
• Parties: COMMUNITY ASSOCIATION FOR RESTORATION OF the ENVIRONMENT, Appellant, v. STATE of Washington, DEPARTMENT OF ECOLOGY, Respondent, Northwest Dairy Association, Intervenor, Washington Dairy Federation, et. al., Intervenors.

205 P.3d 950

149 Wn. App. 830

COMMUNITY ASSOCIATION FOR RESTORATION OF the ENVIRONMENT, Appellant, v. STATE of Washington, DEPARTMENT OF ECOLOGY, Respondent Northwest Dairy Association, Intervenor Washington Dairy Federation, et. al., Intervenors.

No. 36974-5-II.

Court of Appeals of Washington, Division 2.

April 21, 2009.

Michael J. Robinson-Dorn, Seattle, WA, Charles M. Tebbutt, Western Environmental Law Center, Eugene, OR, for Petitioner.

Ronald L. Lavigne Jr., Attorney General Office/Ecology Division, Olympia, WA, Sonia A. Wolfman, Attorney at Law, Olympia, WA, for Respondent.

Bill Clarke, Attorney at Law & Government Affairs, Olympia, WA, John Ray Nelson, Foster Pepper PLLC, Spokane, WA, Lori Ann Terry, Foster Pepper PLLC, Seattle, WA, for Respondent Intervenors.

Bridget A. Baker-White, Smith & Lowney PLLC, Richard Adam Smith, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Waterkeeper Alliance et al.

VAN DEREN, C.J.

¶ 1 This case involves the earnest and vigorous defense of pure groundwater for all citizens of Washington state. All involved parties operated with that goal during the hearings preceding this appeal. The Northwest Dairy Association (Association) and the Washington Dairy Federation (Federation) are named as intervenors in the case and submitted briefs. The Waterkeeper Alliance, Columbia Riverkeeper, Puget Soundkeeper, and North Sound Baykeeper, as amici curiae, also submitted a brief.

¶ 2 The Community Association for Restoration of the Environment (CARE) appeals the decision of the Pollution Control Hearings Board (PCHB) affirming the general permit issued by the Washington Department of Ecology (Ecology) governing nitrate generation from dairies and other livestock operations. CARE specifically appeals the PCHB's determinations that (1) Ecology was not required to include groundwater monitoring as part of the permit and (2) the permit does not violate the federal Clean Water Act's¹ requirement for public participation in the continuing protection of groundwater. We affirm the PCHB's decision allowing implementation of Ecology's general permit.

FACTS

I. The Permit

¶ 3 Under the federal Clean Water Act, discharge of pollutants into state waters is prohibited.² 33 U.S.C. §§ 1251, 1311(a). Any discharge to navigable waters of the United States is unlawful unless the discharge is in accordance with a national pollution discharge elimination system permit. 33 U.S.C. §§ 1311(a), 1342(a). The federal Environmental Protection Agency (EPA) regulates pollution discharge permits but the EPA may delegate this permit system to any state that requests such delegation. 33 U.S.C. § 1342(b). The EPA delegated this regulation to Washington state and Ecology regulates the issuance of pollution discharge permits in the state. See WAC 173-226-030(5), -050(1). Ecology is authorized to issue general permits to groups of similar operations or organizations with similar types of discharge. WAC 173-226-050(3)(b).

¶ 4 In 2004, Ecology drafted a general permit covering dairy and other livestock operations, known as concentrated animal feeding operations (CAFOs).³ CAFOs need pollution discharge permits because they apply animal manure containing nitrogen to crops for fertilization.⁴ Nitrate nitrogen "poses the greatest risk to groundwater ... because it is the most soluble form of nitrogen and moves most easily in water through soil." Clerk's Papers (CP) at 18.

¶ 5 The final permit "took effect on July 21, 2006, and will expire on ... July 21, 2011."⁵ CP at 12. The permit is what is referred to as a "no discharge" permit because it restricts CAFOs from discharging any pollutants into the waters of the state. Under the permit, CAFOs may not discharge any "manure, litter, or process wastewater into waters of the state" unless the discharge occurs as a result of extreme weather. CP at 13. In addition, though the permit allows CAFOs to apply animal waste to crops to provide certain nutrients, it prohibits CAFOs from causing field run-off by applying waste in excess of the amounts that can be absorbed by the crops. The permit, therefore, prohibits "field applications of manure [that] exceed agronomic rates." CP at 13. If any discharges do occur, the permit requires the CAFO "to minimize any discharge that may be authorized ... and to take immediate action in response to unauthorized discharges." In addition, CAFOs must report any discharges to Ecology "as soon as possible but no later than 24 hours after the discharge." CP at 14. Discharges may be authorized if the CAFO "demonstrate[s] to the satisfaction of [Ecology], prior to a discharge, that ... [a]n overriding consideration of the public interest will be served" and also shows that "[a]ll contaminants proposed for entry into said ground waters [have been] provided with all known, available, and reasonable methods of prevention, control and treatment prior to entry." Resp't's Ex. 1, at 1489.

¶ 6 As part of its permit application, a CAFO must submit a nutrient management plan that "conform[s] to the United States Department of Agriculture [USDA] Natural Resources Conservation Service Field Operation Technical Guide [technical guide]." The USDA technical guide is "a series of best management practices that are developed on a national scale and then each state has its own [technical guide] that [is] catered toward the requirements of each state."⁶ Report of Proceedings (RP) (April 30, 2007) at 189. "Once Ecology approves a [nutrient management plan], it becomes an enforceable part of the [p]ermit."⁷ Br. of Resp't at 9.

¶ 7 In addition to the nutrient management plans, the permit requires annual soil monitoring. This monitoring must take place in the fall, after harvesting, so that CAFO operators can determine whether the appropriate amount of nitrate was applied to crops. If soil monitoring shows excess nitrate in the soil, the CAFO must submit an updated nutrient management plan to Ecology.

¶ 8 In conjunction with soil monitoring, the permit requires CAFOs to maintain storage lagoon areas for runoff and other waste. CAFOs must also maintain production areas, which include the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment area. The permit does not require soil monitoring of storage lagoons and production areas.⁸

¶ 9 But the permit requires CAFOs to "develop a process to anticipate the storage level of the manure lagoon," thereby allowing the CAFO to detect possible leakage. "When an inspection shows that the liquid is below the expected level, the facility must investigate immediately." If the CAFO finds that there is a leak in the lagoon, "the facility must take immediate action to stop the leak" and it must notify Ecology of the leak. Resp't's Ex. 1, at 1501. These systems must then be maintained through "[w]eekly inspections of manure, litter, and process wastewater impoundments." CP at 36. Production areas must be designed to divert clean water away from the production area and to divert any runoff from the production area into the storage lagoon so that it will not seep into the ground.

¶ 10 In addition to the submission of nutrient management plans to Ecology, the permit requires CAFOs to maintain "certain additional operational records on-site" and make these records "available upon request by Ecology and [the Department of] Agriculture." CP at 24. If a member of the public requests information, Ecology will request the information from the CAFOs. Under the permit, the CAFO must supply the information upon Ecology's request. Ecology may then determine on a "case-by-case" basis whether any of the requested information qualifies as a confidential business record and is, therefore, exempt from public disclosure.⁹ CP at 49.

II. Procedural History

¶ 11 CARE appealed the permit to the PCHB. Both CARE and Ecology moved for summary judgment and the PCHB ruled in favor of Ecology on seven of the twelve issues CARE raised. The PCHB then conducted a hearing on the remaining five issues and affirmed the permit with the addition of one clarification. This clarification requires that, where "monitoring shows that water quality is at risk," the CAFO may not apply additional waste to fields "until after the [nutrient management plan] update required by [the permit] is approved." CP at 56.

¶ 12 On August 31, 2007, CARE filed a petition for review of the PCHB decision in Thurston County Superior Court. CARE challenged two of the PCHB's decisions. First, it challenged the PCHB's conclusion that it was reasonable for Ecology not to require groundwater monitoring. Second, CARE challenged the PCHB's conclusion that the permit satisfied the Clean Water Act's public participation requirement. CARE requested the following relief:

1. An order declaring that the provisions of the underlying permit set forth above are inconsistent with applicable law and overturning the portions of the Board's Findings of Fact, Conclusions of Law, and Order that are inconsistent with such order, and remanding the permit to the Board and/or the Department of Ecology for reissuance consistent with applicable law;

2. An award of litigation expenses under RCW 4.84.340-.360 and/or RCW 48.84.067; 3. Such other relief as the Court determines is just and reasonable.

CP at 7. The parties jointly moved for direct review by this court under RCW 34.05.518.

ANALYSIS

I. Standard of Review

¶ 13 We review PCHB orders under the Washington Administrative Procedures Act. Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wash.2d 778, 789-90, 51 P.3d 744 (2002); see also RCW 34.05.514(3), .518(1), (3)(a). Our review of the facts is limited to the record before the PCHB. RCW 34.05.558. We apply "the standards of review in RCW 34.05.570(3) directly to the agency record." Postema v. Pollution Control Hearings Bd., 142 Wash.2d 68, 77, 11 P.3d 726 (2000); Dep't of Ecology v. Theodoratus, 135 Wash.2d 582, 589, ...