Weyerhaeuser v. TACOMA-PIERCE COUNTY HEALTH, 29622-5-II.

• Decision Date: 24 August 2004
• Docket Number: No. 29622-5-II.,29622-5-II.
• Citation: 123 Wn. App. 59,123 Wash. App. 59,96 P.3d 460
• Court: Washington Court of Appeals
• Parties: William and Gail WEYERHAEUSER, Plaintiffs, v. TACOMA-PIERCE COUNTY HEALTH DEPARTMENT; Land Recovery, Inc.; Resource Investment, Inc.; Norman Lemay, Defendants. Concerned Residents on Waste Disposal, Appellant/Cross-Respondent, v. Tacoma-Pierce County Health Department, Respondent, Land Recovery, Inc.; Resource Investments, Inc.; Norman Lemay, Respondents/Cross-Appellants.

96 P.3d 460

123 Wn. App. 59

123 Wash. App. 59

William and Gail WEYERHAEUSER, Plaintiffs, v. TACOMA-PIERCE COUNTY HEALTH DEPARTMENT; Land Recovery, Inc.; Resource Investment, Inc.; Norman Lemay, Defendants.

Concerned Residents on Waste Disposal, Appellant/Cross-Respondent, v. Tacoma-Pierce County Health Department, Respondent, Land Recovery, Inc.; Resource Investments, Inc.; Norman Lemay, Respondents/Cross-Appellants.

No. 29622-5-II.

Court of Appeals of Washington, Division 2.

August 24, 2004.

Robert Eugene Mack, Barbara Anne Henderson, Smith Alling Lane, Tacoma, WA, for Appellant.

Steven Snarkson Anderson, Daniel David Syrdal, Heller Ehrman White & McAuliffe LLP, Seattle, WA, for Respondents.

BRIDGEWATER, J.

Concerned Residents on Waste Disposal (CROWD) appeals from a declaratory judgment in favor of Land Recovery Inc. (LRI) and the Tacoma-Pierce County Health Department (TPCHD) concerning the application of Substitute Senate Bill (SSB) 5729 to the construction of a landfill. We hold that the trial court correctly construed the phrase "landfill facility" and the term "construction." We also hold that LRI's activities in drilling permanent wells in 1998, prior to bill's passage on April 27, 1999, constituted "construction" such that LRI was not a "wholly new solid waste landfill" facility and was exempt from regulation under this provision. We affirm.

This case revolves around the construction of a landfill on a 320-acre site at 304th Street and State Route (SR) 161 in Pierce County. Prior to constructing the landfill, respondent, LRI, was required to obtain a solid waste permit, a conditional use permit, and a site development permit. In February 1996, LRI received a solid waste permit from TPCHD pursuant to chapter 70.95 RCW¹ and WAC 173-351. The permit authorizes LRI to accept municipal and non-municipal solid waste for disposal. Under the permit, LRI must submit four copies of the final construction design drawings, construction specifications, and the construction quality assurance manual at least 60 days prior to beginning construction of each new cell,² the environmental monitoring systems, or the landfill's ancillary facilities. In addition, LRI may not begin construction until TPCHD has approved the required documents in writing.

Under Section VII of the permit, LRI must maintain a ground water monitoring system. The permit states:

a. The ground water monitoring system shall consist of ten wells (two background wells MW-9 and MW-10 and eight downgradient wells MW-1 through MW-8) installed within the shallow, Vashon Outwash, aquifer. Existing wells MW-9, MW-10, MW-7 ... and MW-6 ... will be included in the monitoring network. Six new wells (MW-1 through MW-5 and MW-8) shall be installed by LRI within the upper 20 feet of the Vashon Outwash aquifer.

b. Downgradient monitoring wells MW-1 through MW-4 shall be installed for the development and utilization of Cell 1.

Ex. 1 at 11. The permit also requires LRI to implement a wetlands mitigation and monitoring plan.

LRI also received its conditional use permit in early 1996. Under this permit, LRI must create a buffer zone around the active area of the landfill so that no active area will be closer than 250 feet to any property line abutting a residential use or zone classification. In addition, LRI is required to landscape around the landfill to prevent the blowing of litter; minimize noise, dust, and nuisance; and enhance the landscape's visual appearance. The permit also requires LRI to submit a financial guarantee to the county prior to the issuance of a site development permit. Both permits were challenged and upheld in March 1997 by Pierce County Superior Court. See Ex. 235 (Weyerhaeuser v. Pierce County, No. 96-2-08494-3).

In November 1998, LRI installed downgradient monitoring wells MW-1 through MW-4. On November 18, 1998, Andy Comstock, an environmental health specialist with TPCHD, granted LRI written approval to relocate MW-1. At trial, Comstock testified that LRI was not required to submit four copies of the final construction design drawings, construction specifications, and the construction quality assurance manual before constructing the monitoring wells because LRI was directed and authorized to construct the wells under Section VII of its Solid Waste Permit. Comstock also stated that his written approval to LRI to relocate MW-1 provided authorization to construct the wells. Additionally, Comstock testified that while most of the wells were installed for pre-construction site characterization, MW-1 through MW-4 were not installed as part of the site characterization work. Rather, these wells were a permanent part of the monitoring network and were "brand-new wells specifically for monitoring downgradient compliance monitoring for the landfill unit itself." I Report of Proceedings (RP) (Aug. 22, 2001) at 94.

In addition, LRI began planting trees and landscaping at the site on March 26, 1999, and began silt fencing and erosion control in accordance with its wetlands mitigation plan on April 15, 1999. The following week, LRI began construction of a wetlands nursery by clearing the area of trees.

On April 27, 1999, at 4:15 P.M., SSB 5729 was signed into law, amending RCW 70.95.060, the section of the solid waste statute that authorizes the Department of Ecology to promulgate regulations establishing minimum functional standards for solid waste facilities. The bill contains an emergency clause, making it effective immediately.

SSB 5729 provides in relevant part:

(1) The department ... shall adopt ... rules establishing minimum functional standards for solid waste handling ..., consistent with the standards specified in this section.

(2) In addition to the minimum functional standards adopted by the department... each landfill facility whose area at its design capacity will exceed one hundred acres and whose horizontal height at design capacity will average one hundred feet or more above existing site elevations shall comply with the standards of this subsection. This subsection applies only to wholly new solid waste landfill facilities, no part or unit of which has had construction commence before the effective date of this section.

(a) No landfill specified in this subsection may be located:

(i) So that the active area is closer than five miles to any national park or a public or private nonprofit zoological park displaying native animals in their native habitats; or

(ii) Over a sole source aquifer designated under the federal safe drinking water act, if such designation was effective before January 1,1999.

Ex. 277 (emphasis added).

On May 7, CROWD and William and Gail Weyerhaeuser filed petitions for a declaratory judgment that SSB 5729 applied to the LRI landfill because it was located over a sole source aquifer and within five miles of Northwest Trek, a zoological park, and because "construction" had not yet commenced at the landfill site. I Clerk's Papers (CP) at 17. The trial court denied their petition, holding that SSB 5729 did not apply to the LRI landfill because construction activity occurred prior to the bill's passage. Specifically, the court held that LRI's construction of MW-1 through MW-4; landscaping and planting; silt fencing and erosion control; and beginning construction of the wetlands nursery constituted "construction" under the bill.

ANALYSIS

CROWD argues that there is insufficient evidence to support the trial court's findings of fact and conclusions of law. CROWD also assigns error to the court's order denying its motion for reconsideration, entered October 14, 2002. Based upon our review of the record, we hold that substantial evidence supports the trial court's findings of fact and conclusions of law.

In reviewing a trial court's findings and conclusions, we must determine whether substantial evidence supports challenged findings of fact and, in turn, whether the findings support the conclusions of law. Pilcher v. State Dep't of Revenue, 112 Wash. App. 428, 435, 49 P.3d 947 (2002), review denied, 149 Wash.2d 1004, 67 P.3d 1096 (2003). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Pilcher, 112 Wash.App. at 435, 49 P.3d 947. On appeal, we view the evidence in the light most favorable to the prevailing party. Pilcher, 112 Wash.App. at 435, 49 P.3d 947. Additionally, we defer to the trier of fact regarding witness credibility or conflicting testimony. Pilcher, 112 Wash.App. at 435, 49 P.3d 947.

I. Statutory Construction

Our Supreme Court has recently held that, when engaging in statutory construction, our primary objective is to ascertain and give effect to the intent and purpose of the legislature in creating the statute. Am. Cont'l Ins. Co. v. Steen, 151 Wash.2d 512, 518, 91 P.3d 864 (2004). First, we must attempt to derive legislative intent from the statute itself, and if the statute is clear on its face, its meaning must be ascertained from that language. Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864. In addition, legislative definitions included in the statute are controlling. Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864. But in the absence of a statutory definition, we give the term its plain and ordinary meaning ascertained from a standard dictionary. Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864.

A statute is ambiguous if it can be reasonably interpreted in more than one way. Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864. However, it is not ambiguous simply because different interpretations are conceivable. Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864. We are not to search for "an ambiguity by imagining a variety of alternative interpretations." Am. Cont'l, 151 Wash.2d at 518, 91 P.3d 864 (citing W. Telepage, Inc. v. City of Tacoma Dept. of Fin., 140 Wash.2d 599, 608, 998 P.2d 884 (2000)).

An unambiguous statute is not subject to judicial construction, and we will not add language to an unambiguous statute even if we believe the...