Puget Soundkeeper All. v. Pollution Control Hearings Bd.

• Court: Washington Court of Appeals
• Writing for the Court: Mann, J.
• Citation: Puget Soundkeeper All. v. Pollution Control Hearings Bd., 545 P.3d 333 (Wash. App. 2024)
• Decision Date: 18 March 2024
• Docket Number: No. 85665-1-1
• Parties: PUGET SOUNDKEEPER ALLIANCE, Appellant, v. State of Washington POLLUTION CONTROL HEARINGS BOARD, Respondent, and State of Washington, Department of Ecology, Respondent Below, and BNSF Railway Company, the Northwest Seaport Alliance, Port of Seattle, Port of Tacoma, Pacific Merchant Shipping Association, and SSA Terminals, LLC, Respondents.

545 P.3d 333

PUGET SOUNDKEEPER ALLIANCE, Appellant,

v.State of Washington POLLUTION CONTROL HEARINGS BOARD, Respondent,andState of Washington, Department of Ecology, Respondent Below,

and

BNSF Railway Company, the Northwest Seaport Alliance, Port of Seattle, Port of Tacoma, Pacific Merchant Shipping Association, and SSA Terminals, LLC, Respondents.

No. 85665-1-1

Court of Appeals of Washington, Division 1.

Filed March 18, 2024

Appeal from Thurston Superior Court, Docket No: 22-2-00985-1, Honorable Commissioner Pro Tern, Judge

Richard Adam Smith, Attorney at Law, 2317 E John St., Seattle, WA, 98112-5412, Claire Elizabeth Tonry, Katelyn J. Kinn, Smith & Lowney PLLC, 2317 E John St., Seattle, WA, 98112-5412, for Appellant.

James A. Tupper Jr., Marten Law LLP, 1191 2nd Ave. Ste. 2200, Seattle, WA, 98101-3421, Lynne Michele Cohee, Bradford Timothy Doll, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Bradley Bishop Jones, Gordon Thomas Honeywell LLP, 520 Pike St. Ste. 2350, Seattle, WA, 98101-4006, Dianne Kathleen Conway, Gordon Thomas Honeywell LLP, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, Ronald L. Lavigne Jr., Aty. Gen. Ofc./Ecology Division, P.O. Box 40117, Olympia, WA, 98504-0117, Julian Hua Beattie, Washington State Office of the Attorney, P.O. Box 40117, Olympia, WA 98504-0117, for Respondent.

Lisa M Petersen, WA State Attorney General’s Office (LAL), 800 5th Ave. Ste. 2000, Seattle, WA 98104-3188, for Other Parties.

PUBLISHED OPINION

Mann, J.

¶1 "Stormwater runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources."¹ The Washington Department of Ecology is charged by statute with implementing both the federal Clean Water Act of 1977 (CWA), 33 U.S.C. §§ 1251-1389, and Washington’s "Water Pollution Control Act" (WPCA), ch. 90.48 RCW. This appeal concerns Ecology’s issuance of the 2020 Industrial Stormwater General Permit (2020 permit) under the National Pollutant Discharge Elimination System (NPDES) and state discharge permit program. Consistent with prior iterations of the same permit, Ecology maintains that under the 2020 permit "transportation facilities" that have "vehicle maintenance shops, equipment cleaning operations, or airport deicing operations" must obtain coverage under the 2020 permit. And for facilities that must obtain coverage, the permit requirements apply to the entire facility—not limited portions.

¶2 Several parties appealed the 2020 permit raising a multitude of issues. The Pollution Control Hearings Board (PCHB) granted summary judgment on legal issue 11 in favor of industry appellants and declared legal issue 12 moot as a result. The PCHB concluded, as a matter of law, that the 2020 permit was unambiguous and only applied to limited portions of the covered transportation facilities. Puget Soundkeeper Alliance (PSA) appeals the PCHB’s order granting summary judgment and argues that the permit applies to the entire transportation facility.² We agree.

¶3 We reverse and set aside the PCHB’s order on legal issues 11 and 12. We remand to the PCHB to, consistent with this opinion, grant summary judgment on legal issue 11 in favor of Ecology and PSA, and reach the merits of legal issue 12.

I

A

¶4 The objective of the federal CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." 33 U.S.C. § 1251(a). The CWA set a national goal to eliminate the discharge of pollutants into the Nation’s waters by 1985. 33 U.S.C. § 1251(a)(1). The CWA also recognized the role of the states in controlling water pollution: "the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution." 33 U.S.C. § 1251(b). Consistent with this policy, the CWA explicitly authorizes states to regulate water pollution more stringently than required by the CWA. 33 U.S.C. § 1370.

¶5 The CWA prohibits the discharge of any pollutant from a point source to navigable waters without a permit. 33 U.S.C. §§ 1311(a), 1362(12). The NPDES program is the permitting program through which individuals, corporations, and governments obtain the required permits before discharging pollution from any point source into the navigable waters of the United States. 33 U.S.C. § 1342; Decker v. Nw. Env’t Def. Ctr., 568 U.S. 597, 602, 133 S. Ct. 1326, 185 L. Ed. 2d 447 (2013). The Environmental Protection Agency (EPA) sets the base requirements for the NPDES program and is authorized to delegate administration of the program to a state upon a state’s request and submission that it has adequate authority to carry out the program. 33 U.S.C. § 1342(b). The CWA makes clear that EPA’s mandates and standards are a floor, not a ceiling:

Except as expressly provided in this chapter, nothing in this chapter shall … preclude or deny the right of any State … to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, … or standard of performance is in effect under this chapter, such State … may not adopt or enforce any effluent limitation or other limitation, effluent standard, prohibition, … or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, … or standard of performance under this chapter.

33 U.S.C. § 1370; see also 33 U.S.C. § 1251(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary responsibility and rights of States to prevent, reduce, and eliminate pollution.").

¶6 EPA authorized Ecology to administer the NPDES program in Washington in 1974. See Discharge of Pollutants to Navigable Waters, 39 Fed. Reg. 26,061 (July 16, 1974). The Washington Legislature has designated Ecology as the state water pollution control agency for all purposes under the CWA. RCW 90.48.260.

¶7 Ecology also administers the WPCA. The WPCA declares it is the public policy of the state to:

maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish, and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state.

RCW 90.48.010. The legislature also declared a public policy of "working cooperatively with the federal government in a joint effort to extinguish the sources of water quality degradation, while at the same time preserving and vigorously exercising state powers" to protect water quality. RCW 90.48.010.

¶8 RCW 90.48.020 broadly defines "pollution" to include any contamination of state waters that "will or is likely to create a nuisance or render such waters harmful … to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life." RCW 90.48.080 prohibits all discharges of any "matter that shall cause or tend to cause pollution. Under RCW 90.48.160, a discharge permit is required by "[a]ny person who conducts a commercial or industrial operation of any type which results in the disposal of solid or liquid waste material" into any water of the state."

B

¶9 There are generally two types of NPDES permits: individual and general. See Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, 279 F.3d 1180, 1183 (9th Cir. 2002). Individual NPDES permits authorize a specific entity to discharge pollutants at a specific location or locations. WAC 173-220-030(12). Individual NPDES permits are issued after an informal agency adjudication process. See 40 C.F.R. § 122.21. In contrast, general NPDES permits are issued for an entire class of potential dischargers in a given geographical location. General permits may be appropriate when the dischargers in a geographic area are relatively homogenous—such as stormwater dischargers. 40 C.F.R. § 122.28; WAC 173-226-030(13). General permits are issued pursuant to an administrative rulemaking process, including public notice, public hearing, and an administrative appeal process. WAC 173-226-130 to -180. Once a general permit is issued, it is up to the facility to apply for coverage under the general permit. WAC 173-226-200.

¶10 General NPDES permits, like the 2020 permit at issue, are designed to satisfy the requirements of both the federal CWA and the state WPCA. WAC 173-226-010.

C

¶11 Stormwater pollution is a major concern for the states. As recognized by the Ninth Circuit over twenty years ago, "[s]tormwater runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources.’" Env’t Def. Ctr., Inc. v. U.S. Env’t Prot. Agency, 344 F.3d 832, 840-41 (9th Cir. 2003). As acknowledged by the PCHB:

Stormwater is the leading contributor to water quality pollution in urban waterways. Common pollutants in stormwater include lead, zinc, cadmium, copper, chromium, arsenic, bacterial/viral agents, oil & grease, organic toxins, sediments, nutrients, heat, and oxygen-demanding organics. Municipal stormwater also causes hydrologic impacts, because the quantity and peak flows of runoff are increased by the large impervious surfaces in urban areas. Stormwater discharges degrade water bodies and, consequently, impact human health, salmon habitat, drinking water, and the shellfish industry.

Puget Soundkeeper All. v. Dep’t of Ecology, No. 07-21, at 11-12 (Wash. Pollution Control Hr’gs Bd. Apr. 2, 2008) [https://perma.cc/W66H...