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Inland Foundry Co. v. Spokane County Air Pollution Control Auth.

Citation: 30 ELR 20242
No. No. 18110-3-III, 989 P.2d 102/(Wash. Ct. App., 11/30/1999)

The court affirms a trial court decision and holds that a company cannot challenge an air pollution authority's regulatory classification before a pollution control hearing board. After the air pollution authority imposed a $ 182 registration fee on the company, the company appealed to the pollution control hearing board and contended that the authority was required to classify the company as a pollution source before it could collect the registration fee. The court first holds that the hearing board does not have jurisdiction to pass on the validity of an air pollution authority rule. The hearing board can only review questions of the application of rules and regulations and does not have jurisdiction to review the rulemaking process. Review of the air pollution authority's rulemaking is reserved by the state Administrative Procedure Act to the state superior court. Because the air pollution authority's classification scheme was created in a rulemaking, not an adjudicative procedure, the hearing board had no jurisdiction to review the validity of the rule and properly dismissed the case. The court next holds that the air pollution authority's classification scheme was lawful as applied to the company. State statutes allow the air pollution authority to promulgate rules creating broad classes of air contaminant sources. In making the rule, the authority must consider the effects of emissions from a proposed class of pollution source on health, economic, and social factors, as well as the physical effects on property. Having created a class with reference to the required considerations, the authority can then identify its members by type of business and require the members to register and pay a registration fee. As a member of a regulated class, the company is required to register and is subject to the fee, and the authority is not required to justify the fee by individually assessing the health, economic, social, and physical effects of the company's particular emissions.

The full text of this opinion is available from ELR (4 pp., ELR Order No. L-146).

Counsel for Appellant
Eric K. Nayes
Law Offices of Eric K. Nayes
505 W. Riverside Ave., Ste. 500, Spokane WA 99201
(509) 252-5072

Counsel for Respondents
Thomas F. Kingen
Perkins Coie
N. 221 Wall St., Ste. 600, Spokane WA 99201
(509) 624-2212