SOUNDKEEPER v. State, Dept. of Ecology
| Decision Date | 18 September 2000 |
| Docket Number | No. 44762-9-I.,44762-9-I. |
| Citation | 102 Wash. App. 783,9 P.3d 892 |
| Court | Washington Court of Appeals |
| Parties | PUGET SOUNDKEEPER ALLIANCE, Washington Environmental Council, and People For Puget Sound, Respondents, v. STATE of Washington, DEPARTMENT OF ECOLOGY, and Tesoro Northwest Company, Petitioners. |
Patti Goldman, Jan E. Hasselman, Earthjustice Legal Defense Fund, Seattle, for Appellant.
Ronald L. Laviigne, Attorneys General's Office-Ecology Division, Olympia, Mathew Cohen, Heller Ehrman White & McAuliffe, Seattle, for Respondent.
RCW 90.48.520 requires that wastewater discharge permits issued under the federal Clean Water Act (CWA) and Washington's Water Pollution Control Act (WPCA) include conditions requiring the permit holder to use all known, available, and reasonable methods to control toxicants in that wastewater. The Department of Ecology (DOE) issued a permit to Tesoro Northwest Company (Tesoro) that includes a combination of numeric effluent limits and narrative conditions to ensure that this requirement is met. Because the plant often operates well below the numeric discharge limits specified in the permit, Puget Soundkeeper Alliance (Soundkeeper) appealed the permit, arguing that the applicable statutes require numeric limits only, and that those limits should be lower, reflecting Tesoro's actual discharge performance. We hold that DOE properly imposed a combination of conditions, these conditions further the purposes of the CWA and WPCA more effectively than numeric conditions alone and, on this record, the numeric limits are reasonable.
DOE renewed a waste discharge permit for the Shell Anacortes refinery in March 1998. After Tesoro acquired that refinery, the permit was transferred to Tesoro on September 15, 1998. The permit contains numerical effluent limitations, whole effluent toxicity limitations and narrative conditions. Soundkeeper appealed the Tesoro permit to the Pollution Control Hearings Board (PCHB), claiming that it violated state law standards, which require using all known available and reasonable methods of prevention, control, or treatment (AKART), because the historic operation of the facility produced actual discharge levels well below the levels set in the permit. Soundkeeper reasoned that the refinery's actual discharge levels were themselves known, available and reasonable methods of pollution control and therefore required DOE to impose levels lower than those set in the permit. It also argued that DOE violated applicable statutes by using a combination of numeric limits and narrative conditions because only numeric limits satisfy AKART requirements. The parties submitted the case to the PCHB on stipulated facts. They agreed that the refinery actually operates in compliance with AKART and that its reported discharge levels for most parameters were significantly below permit limits most of the time. Based on the stipulated facts, the PCHB upheld the permit, concluding that the combination of numeric discharge limits and the narrative requirements in the permit fully satisfied Washington AKART requirements.
This court undertakes the same review of DOE and PCHB decisions as does the superior court.1 We review their legal decisions de novo, giving substantial weight to the agency's interpretation of the statutes it administers.2 An agency's interpretation of a statute is not binding on the court,3 but we will uphold it if it is a plausible construction.4 In reviewing a decision of the PCHB, we may consider only the evidence that was before it.5 Here, the PCHB was limited to stipulated facts in making its decision, so we are likewise limited in our review to those stipulations. Accordingly, we cannot consider Soundkeeper's argument based on Tesoro's actual performance standards because they are not among the stipulated facts and thus not part of our record. The record does include a stipulation that reported discharge levels for most parameters were significantly below permit levels most of the time, and we can consider that stipulation in deciding the other two issues: whether the Tesoro permit violates AKART requirements and whether the AKART provision allows DOE to use a combination of numeric and narrative conditions.
The Federal Water Pollution Control Act (CWA) was enacted with the broad policy objective of restoring and maintaining the chemical, physical and biological diversity of the nation's waters.6 One goal of the CWA was to eliminate the discharge of pollutants into the nation's navigable waters by 1985.7 To this end, the CWA created the National Pollutant Discharge Elimination System (NPDES),8 a permit program designed to press for development of new, more efficient and effective technologies and impose progressively more demanding limits as technology advanced.9
The CWA does not prevent states from adopting or enforcing other limits, so long as they are as stringent as the federal standards.14 Similarly, Washington's WPCA has a policy of maintaining the highest possible standards to insure the purity of all waters in the state and, to that end, requires using "all known available and reasonable [treatment] methods" to prevent and control the pollution of state waters.15 The statute declares that Washington will work cooperatively with the federal government to extinguish sources of water quality degradation.16 But the WPCA also requires that this policy be consistent with several other state policies, including those promoting industrial development.17
DOE is the Washington water pollution control agency for all purposes under the CWA.18 Accordingly, DOE has complete authority to administer the NPDES permit program,19 and has adopted procedures for that purpose.20 Whenever possible, permits issued by DOE must ensure compliance with AKART requirements.21
Soundkeeper's arguments rely heavily on the policies of the CWA and WPCA, asserting that they require DOE to limit water pollution to the greatest extent achievable and compel the development of new control technology. Soundkeeper is correct that the permit program was intended to impose increasingly stringent technologybased limits on effluents.22 But the way the federal and state statutory schemes are designed, reductions in effluent limits are driven by advances in technology, not vice versa. Effluent limits are not reduced in order to drive advances in technology. Nor are they necessarily reduced with each new permit cycle. Rather, the statutory scheme envisions that effluent limitations will decrease as technology advances.23 Nothing in our state's parallel statute indicates that it differs from the federal statutory scheme on this point.
Nor do either Acts' declarations of policy control over the more specific statutory provisions adopted to implement those general declarations:24
Undeniably, Congress' strong statement of its objective must color EPA's and our interpretation of specific provisions of the Act. But, as any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal. Read as a whole, the Clean Water Act shows not only Congress' determined effort to clean up our polluted lakes and rivers, but also its practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources. The Act contains numerous requirements that cost be taken into account in establishing effluent limits, as well as assorted exemptions from those limits. Moreover, the purposes section, in its own right, suggests that Congress recognized that the substantive provisions of the Act fall short of completely achieving the announced goals of the Act.[25]
Washington law is no different. Although declarations of policy in an act serve as an important guide to the meaning of the operative sections, they have no operative force in and of themselves.26 And, while Washington has declared a public policy of maintaining the highest possible standards to insure the purity of its waters, that policy is expressly subject to several other public policy considerations and to the specific requirements of the statute.
Thus, the goals of the CWA, progressively reducing discharge levels and ultimately preventing all discharge, are general long term goals. So too is Washington's goal of maintaining the highest standards to ensure the purity of the state's waters. But under the statutory provisions implementing these goals, even a permit that does not directly advance the Acts' policies is not arbitrary if it complies with specific NPDES and AKART requirements.
Soundkeeper claims the Tesoro permit fails to comply with what it argues are Washington's more stringent AKART requirements because AKART mandates that permits contain only numeric effluent limits and this permit includes both numeric and narrative conditions. The AKART statute, RCW 90.48.520, provides:
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