Simpson Tacoma Kraft Co. v. Department of Ecology

• Decision Date: 10 September 1992
• Docket Number: No. 57949-1,57949-1
• Citation: 835 P.2d 1030,119 Wn.2d 640
• Court: Washington Supreme Court
• Parties: , 23 Envtl. L. Rep. 20,293 SIMPSON TACOMA KRAFT COMPANY; ITT Rayonier Incorporated; Longview Fibre Company, Respondents, v. DEPARTMENT OF ECOLOGY; Christine O. Gregoire, Director of the Department of Ecology; State of Washington, Appellants.

Page 640

119 Wn.2d 640

835 P.2d 1030, 23 Envtl. L. Rep. 20,293

SIMPSON TACOMA KRAFT COMPANY; ITT Rayonier Incorporated Longview Fibre Company, Respondents, v. DEPARTMENT OF ECOLOGY; Christine O. Gregoire, Director of the Department of Ecology; State of Washington, Appellants.

No. 57949-1.

Supreme Court of Washington En Banc.

Sept. 10, 1992.

Kenneth O. Eikenberry Atty. Gen., James K. Pharris, Sr. Asst. Atty. Gen. and Allen T. Miller, Jr., Asst. Atty. Gen., Olympia, for appellants.

Heller, Ehrman, White & McAuliffe, John W. Phillips, Andrew M. Kenefick, Lane, Powell, Spears & Lubersky, Robert R. Davis, Jr., Grant S. Degginger; and Bogle & Gates, Beth S. Ginsberg and Scott P. Isaacson, Seattle, for respondents.

Victor M. Sher, Todd D. True and Rebecca E. Todd, Seattle, amicus curiae for appellants on behalf of Sierra Club Legal Defense Fund, Inc.

JOHNSON, Justice.

The Department of Ecology (Ecology) seeks review of the superior court judgment invalidating Ecology's use of its numeric water quality standard for the discharge of dioxin. The Superior Court invalidated this numeric standard and enjoined its enforcement due to Ecology's failure to follow rule-making procedures in adopting the standard. We affirm the Superior Court.

The respondents operate pulp and paper mills in Washington. Pulp and paper mills use chlorine in their wood pulp bleaching process. This process is known to produce dioxin as a by-product. Dioxin is toxic and harmful to humans, animals and plant life. The particular dioxin at issue in this case is 2,3,7,8-Tetrachlorodibenzo-p-dioxin (2378 -TCDD). The respondents do not dispute that their dioxin discharges should be limited and regulated, and they conceded this point at oral argument. This appeal thus does not concern whether or to what extent dioxin discharges should be limited. Rather, this case concerns the process by which an appropriate dioxin standard should be adopted in Washington.

I

The Legislature has designated Ecology as the state's water pollution control agency for purposes of the federal Clean Water Act of 1977. RCW 90.48.260. Ecology is authorized to take all actions necessary for Washington to meet the requirements of the act. RCW 90.48.260. The Clean Water Act of 1977 (CWA), codified at 33 U.S.C. § 1251 et seq., provides for a comprehensive system of regulating waste water discharges throughout the country.

The CWA requires states to submit to the Environmental Protection Agency (EPA) a list of water bodies which were still not meeting state water quality standards as of February 4, 1989. 33 U.S.C. § 1314(l )(1). In addition, states are also required under the act to develop a list of "point sources" or entities believed to be discharging pollutants into the water. 33 U.S.C. § 1314(l )(1)(C). For each pollution "point source", the act requires a state to develop an "individual control strategy" by which the state proposes to control the pollution and bring the water body in compliance with the state's water quality standards within a 3-year period. 33 U.S.C. § 1314(l )(1)(D).

The CWA's principal enforcement mechanism is the National Pollutant Discharge Elimination System (NPDES). See 33 U.S.C. § 1342. Under the CWA, it is unlawful to discharge a pollutant from a point source without an NPDES permit. See 33 U.S.C. § 1311(a); 2 D. Stever, Environmental Protection § 12.05[a] (1992). These permits generally regulate the discharge of pollutants. The EPA is charged with reviewing each state's list of water bodies and point sources. 33 U.S.C. § 1342(b). If the EPA approves of a state's lists and individual control strategies, the Clean Water Act of 1977 authorizes the state to issue NPDES permits to the entities responsible for the pollution point sources. 33 U.S.C. § 1342(b), (c).

The CWA requires a state to hold public hearings at least once every 3 years for the purpose of reviewing the state's water quality standards and for adopting new standards where appropriate. 33 U.S.C. § 1313(c)(1). When a state conducts this review, language in the CWA indicates that a state may be required to adopt specific numerical criteria for certain toxic pollutants. 33 U.S.C. § 1313(c)(2)(B). The dioxin at issue in this case, 2378-TCDD, is one such pollutant. 33 U.S.C. § 1317(a)(1); Staff of House Comm. on Public Works and Transportation, 95th Cong., 1st Sess., Staff Data Relating to H.R. 3199 (Clean Water Act of 1977) 4 (Comm. Print 1977); Natural Resources Defense Coun., Inc. v. United States Envtl. Protec. Agency, 770 F.Supp. 1093, 1097 n. 2 (1991).

The EPA has determined that pulp and paper mills across the country, including the respondents' mills in Washington, are point sources for dioxin. Ecology accordingly included the respondents in its 1989 list of point sources, and it proposed to include dioxin discharge limitations in the next NPDES permits issued to each of the respondents. Ecology has not promulgated by means of rulemaking a numeric water quality criterion specifying the allowable concentration of dioxin for the state's waters.

The state's narrative water quality standard, however, provides as follows:

Toxic substances shall not be introduced above natural background levels in waters of the state which may ... adversely affect public health, as determined by the department [of Ecology].

WAC 173-201-047(4). Ecology applied this narrative standard to dioxin and determined that discharges above .013 parts per quadrillion (ppq) "may ... adversely affect public health" within the meaning of WAC 173-201-047(4). Ecology arrived at this numeric standard by using federal guidance and federal data, but without going through rule-making procedures. Differences of opinion exist within the scientific community regarding dioxin's acceptable concentration level. The states which have adopted a numeric standard for dioxin have reached differing standards.

The record reflects that Ecology considers this .013 ppq standard to be the state's water quality standard for dioxin. Ecology officials and employees gave deposition testimony that the .013 ppq standard is a uniform standard applicable to all water bodies and point sources in the state, that Ecology employees are bound to apply the standard, and that entities exceeding the .013 ppq standard would be in violation of state law.

Ecology accordingly used this .013 ppq numeric standard in formulating the respondents' individual control strategies for dioxin. As a result, the respondent pulp mills filed complaints for declaratory and injunctive relief in Thurston County Superior Court. They argued that Ecology's numeric standard for dioxin is invalid and unenforceable due to Ecology's failure to follow statutorily mandated rule-making procedures in adopting the standard.

The Superior Court granted the respondents' motion for summary judgment in December 1990. The court invalidated Ecology's numeric standard and enjoined Ecology from enforcing it due to Ecology's failure to follow rule-making procedures in adopting the standard. The court also ruled that the state's narrative water quality standard contained in WAC 173-201-047 is unconstitutionally vague as applied to the respondent pulp mills in this case.

On March 8, 1991, the EPA conditionally approved Ecology's listing of the respondent mills for their dioxin discharges. The EPA conditioned this approval, in part, on Ecology's ability to issue by June 1991 new NPDES permits to the mills containing dioxin discharge limitations.

In order to issue these permits by the June deadline, Ecology brought a motion before this court for a stay of the Superior Court's injunction. The commissioner of this court granted the stay, allowing Ecology to issue NPDES permits to the respondents based on the .013 ppq water quality standard. The commissioner conditioned his order on Ecology's agreement to stay the permit conditions relating to dioxin pending Ecology's appeal in the case. Ecology has accordingly issued the NPDES permits to the respondents and has stayed the conditions relating to dioxin. This court accepted direct review of Ecology's appeal from the superior court determination.

In the interim, the respondents pursued administrative remedies and appealed the dioxin limits in these NPDES permits to the Pollution Control Hearings Board (PCHB) pursuant to RCW 43.21B.110(1)(c). The PCHB has since granted the respondents partial summary judgment on the question of whether Ecology could issue the NPDES permits with the dioxin limits under the authority of the Clean Water Act of 1977. The Board ruled that because Ecology did not devise the NPDES permit limits for dioxin through the promulgation of a numeric water quality standard, Ecology did not have the authority to issue the permits under 33 U.S.C. § 1314(l )(1) of the Clean Water Act of 1977. The validity of the Board's ruling is not before the court in this appeal. Also, this ruling does not appear to be final, as the Board's order gives Ecology the opportunity to present other grounds to the Board, if any such grounds exist, in support of its dioxin control programs.

On November 19, 1991, the EPA issued a notice that it proposed to adopt as a rule the same .013 ppq numeric criterion for dioxin that is at issue in this case. 56 Fed.Reg. 58420, 63471 (1991) (to be codified at 40 C.F.R. § 131.36). The EPA called for written comments, and a public hearing took place on December 19, 1991. Ecology then brought a motion before this court to declare its appeal moot because of the EPA's proposed rule for dioxin. This motion was passed to the merits. Ecology conceded at oral argument in this case, however, that this appeal is not moot, as the EPA has not yet promulgated any rule.

II

We begin our discussion by determining the proper standard of review. Ordinary rules of appellate procedure apply to an appeal from a declaratory judgment. Nollette v. Christianson, 115 Wash.2d 594, 599-600, 800 P.2d 359 (1990). In a declaratory...