Citizens for Clean Air v. City of Spokane

• Decision Date: 25 January 1990
• Docket Number: No. 56366-7,56366-7
• Citation: 114 Wn.2d 20,785 P.2d 447
• Court: Washington Supreme Court
• Parties: CITIZENS FOR CLEAN AIR, a not-for-profit association; and Council for Land Care and Planning, Inc., a not-for-profit corporation, Appellants, v. CITY OF SPOKANE; Spokane County; and Wheelabrator Spokane, Inc., Respondents.

Page 20

114 Wn.2d 20

785 P.2d 447

CITIZENS FOR CLEAN AIR, a not-for-profit association; and Council for Land Care and Planning, Inc., a not-for-profit corporation, Appellants, v. CITY OF SPOKANE; Spokane County; and Wheelabrator Spokane, Inc., Respondents.

No. 56366-7.

Supreme Court of Washington,

En Banc.

Jan. 25, 1990.

Bricklin & Gendler, David A. Bricklin, Seattle, for appellants.

James C. Sloane, Spokane City Atty., Greg Smith, Asst., Donald C. Brockett, Spokane County Prosecutor, James P. Emacio, Deputy, Preston, Thorgrimson, Ellis & Holman, Thomas F. Kingen, Spokane, Perkins & Coie, John H. Binns, Jr., Seattle, for respondents.

UTTER, Justice.

The Superior Court for Spokane County rejected a challenge to Spokane's ¹ plans to build a mass burn incinerator ² near Spokane International Airport. We affirm the trial court's decision.

Prior to 1984, Spokane realized that its existing landfills threatened the water quality of the Spokane Rathdrum aquifer, the sole source of drinking water for the Spokane region. Some alternative to continued landfilling was required.

Spokane responded by adopting a Comprehensive Solid Waste Management Plan Update (hereinafter Plan) in December 1984. The Plan recommended that Spokane build an incinerator and phase out existing landfills. When Spokane adopted the Plan in December 1984 it also passed an ordinance to finance the incinerator with $50,000,000 of bonds. Spokane determined that the State Environmental Policy Act of 1971 (SEPA) did not require a full Environmental Impact Statement (EIS) evaluating the environmental consequences of the Plan. Accordingly, it published a declaration of nonsignificance for the Plan in December 1984.

RCW 70.95.094(2) requires that local government submit solid waste management plans to the Department of Ecology (DOE) for approval. The DOE indicated its concern with the Plan's lack of specific information on the incinerator and on recycling in a letter dated September 4, 1985. But the DOE conditionally approved the Plan on May 2 1986. The letter of conditional approval stated that the Plan "generally fulfills the requirements of the Solid Waste Management ... Act".

Spokane began preparing an EIS after adopting the Plan. It published a proposed scoping document, a document delineating the scope of the proposed EIS, which indicated that the EIS would compare sites and designs for an incinerator. It held a public scoping hearing at which no one commented.

Spokane solicited and received the public's views upon the draft and supplemental draft environmental impact statements during a public comment period ending on May 30, 1986. Some who commented raised the recycling concern now raised by appellants in this litigation.

The city council and county commissioners approved a DOE grant funding the incinerator on November 17 and 18, 1986, respectively. On December 16, 1986, Spokane issued a request for proposals to build the incinerator.

On January 19, 1987, the Council for Land Care and Planning, Inc., a party in this litigation, complained in writing to the county commissioners about the inadequacies of the EIS. The Council requested a supplemental EIS (SEIS) in letters of June 30, 1987 and September 17, 1987.

An addendum to the EIS appeared in the SEPA register on April 6-10, 1987, evaluating an airport site for the incinerator. The board authorized a law firm to negotiate a contract for the construction of the incinerator on June 16, 1987.

On October 26, 1987, the city council began hearings on a proposed contract. An attorney for Citizens for Clean Air, party to this litigation, appeared at the hearing and argued, on the record, that the EIS was inadequate.

On October 30, 1987, the Council for Land Care and Planning, Inc. sent a letter to the Spokane County Commissioners which began, "Consider this the formal appeal of CLCP on the issuance of Site Permit 1987-01 granted ... October 2, 1987 and due to take effect January 1 1988." This "appeal" did not challenge the adequacy of the existing EIS. Rather, it sought a new EIS and a supplemental EIS.

The DOE approved the design and construction contracts for the incinerator on October 30, 1987. The contract included a provision requiring Spokane to pay Wheelabrator, the contractor, to incinerate 220,000 tons of waste per year. On November 3, 1987, the City and County approved an interlocal agreement to manage the incinerator.

Citizens for Clean Air and the Council for Land Care and Planning, Inc. (hereinafter Citizens) filed suit on November 23, 1987. They alleged that Spokane violated SEPA by writing an inadequate EIS and then failed to file a supplemental EIS when they changed the site of the facility. They claimed that Spokane's solid waste management emphasized incineration at the expense of recycling and therefore violated a legislative provision giving recycling and waste reduction higher priority than incineration. See RCW 70.138.010(1). It was also argued that Spokane violated the law governing selection of the firm building the incinerator by using a noncompetitive vendor selection process. This process was only available to facilities "in substantial compliance with the solid waste management plans prepared pursuant to chapter 70.95 RCW", the statute regulating solid waste management plans. See RCW 35.92.024(1). Citizens argued that disbursement of the funds raised to finance the incinerator violated a municipal ordinance. See Spokane ordinance C-27797. The trial court ruled against them on the merits on all of these statutory claims.

Citizens also alleged that Spokane had violated article 8, section 7 of the Washington Constitution, which prohibits local governments from giving away money or lending credit. The trial court granted Spokane's motion for summary judgment on the constitutional issue.

We consider each of these issues in turn and address the issues of costs and attorney fees.

I State Environmental Policy Act of 1971

The State Environmental Policy Act of 1971 (SEPA) requires local governments to evaluate the environmental impact of actions significantly affecting the environment. See generally RCW Ch. 43.21C. Citizens do not challenge Spokane's failure to do this before adopting the Plan. Rather, they challenge the legal sufficiency of the statement later adopted.

They claim that the final EIS fails to consider recycling as a partial or total alternative to incineration and that it failed to adequately consider the environmental impact of the ash residue the incinerator will generate. Citizens also argue that SEPA requires a SEIS addressing fogging and icing issues connected with the site selected near Spokane International Airport.

A. Exhaustion of Administrative Remedies

This court will not consider SEPA claims unless plaintiffs exhaust available administrative remedies before suing. See RCW 43.21C.075(4). There is no administrative appeal route for the SEIS claim. We agree with the trial court that the litigants are entitled to a decision on the merits of the SEIS claim. This matter does not require extended discussion.

Spokane has argued that we should not consider Citizens' complaints about the final EIS because Citizens failed to exhaust an available administrative remedy. To determine whether the exhaustion requirement bars the final EIS claims we must decide: (1) whether administrative remedies were exhausted; (2) whether an adequate remedy was available; (3) whether adequate notice of the appeals procedure was given; and (4) whether exhaustion would have been futile.

Appellants argue that their repeated attempts to object to the EIS constitute "appeals." Nothing in the record, however, shows that appellants considered these comments "appeals" at the time.

The record contains a letter denominated an "appeal" which did not question the adequacy of the existing EIS. An attorney for appellants Citizens for Clean Air appeared at a legislative hearing in October 1987. But nothing in the record indicates that either he or the county commissioners considered his remarks to be a formal appeal. Since the record shows no attempt to use the appeals procedure provided, we conclude, as did the trial court, that Citizens made no appeal. See finding of fact 2.14.

The respondents have pointed to only one appeal procedure available to appellants. Spokane's environmental ordinance allows citizens to appeal the adequacy of a final EIS. It states:

An administrative appeal of the adequacy of a FEIS ... would follow the procedure for the underlying action and if there is no clearly apparent appeal body, then the appeal would be within ten calendar days to the legislative or policy making body of the particular lead agency.

Spokane County Code § 11.10.170(1)(a)(iii).

Appellants argue that the appeals procedure is so poorly defined that they need not make an appeal pursuant to it. They argue correctly that it is difficult to tell when to file an appeal simply by reading the ordinance.

Generally, this court requires exhaustion only when the administrative remedy is adequate. See State v. Tacoma-Pierce Cy. Multiple Listing Serv., 95 Wash.2d 280, 283-284, 622 P.2d 1190 (1980). This court has said in dicta that it imposes the exhaustion requirement only when " 'clearly defined machinery' " exists for the " 'submission, evaluation and resolution' " of complaints. (Italics ours.) Multiple Listing, 95 Wash.2d at 284, 622 P.2d 1190 (quoting Retail Store Employees Local 1001 v. Washington Surveying & Rating Bur., 87 Wash.2d 887, 907, 558 P.2d 215 (1976)).

While a process for appeal must exist, we have never held that the ordinance describing the procedure must be clear. The dicta in Multiple Listing goes to the adequacy of the administrative procedures themselves. To establish that the procedures themselves are so poorly defined that we should excuse exhaustion, the litigant must attempt to appeal. A litigant who makes a sincere effort to clarify ambiguities in...