ASARCO Inc. v. Air Quality Coalition

No. 45508 (601 P.2d 501, 92 Wash. 2d 685) (Wash. October 11, 1979)

ELR Digest

The Washington Supreme Court remands a case concerning respondent's attempts to obtain a variance for its Tacoma smelter from applicable state air pollution regulations. In February 1976 respondent obtained from the Puget Sound Air Pollution Control Agency (PSAPCA) a variance from that agency's regulations permitting it to violate emission standards for several pollutants for from two to five years.PSAPCA determined that issuance of the variance did not require preparation of an environmental impact statement (EIS) under the State Environmental Policy Act (SEPA). That decision was reversed on appeal by the Pollution Control Hearings Board (PCHB) but was reinstated by the trial court.

Reversing the trial court, the supreme court first rules that the PCHB had jurisdiction over the appeal from the ruling of the PSAPCA. WASH. REV. CODE §§ 43.21B.110, 43.21B.120, and 43.21B.130 clearly give the PCHB jurisdiction over appeals by an aggrieved person not only of enforcement actions but of all decisions of the PSAPCA. The court also reverses the trial court's conclusion that the PCHB does not have power to issue summary judgment orders. Such power is essential to administrative bodies performing quasi-judicial functions and is conferred upon the PCHB by statute and common law.

The court also concludes, applying the "clearly erroneous" standard, that the PSAPCA's decision not to prepare an EIS in connection with the issuance of the variance violated SEPA. Because the granting of the variance was a "discretionary" and non-duplicative" act, it constituted a "major action" under SEPA. The action will "significantly affect the environment" because it will permit respondent to discharge hundreds of tons of particulates and thousands of tons of sulphur dioxide that would not be discharged but for the variance. Because there is a reasonable probability that the action will have a moderate effect on the quality of the environment, and EIS is required. This conclusion is not altered because the variance merely "maintains the status quo" by allowing respondent to continue emitting pollutants at a level higher than that authorized by state law. SEPA declares it to be the policy of the state not only to prevent damage to the environment but to enhance and restore environmental quality. In addition, SEPA's EIS requirement does not yield in the face of the state Clean Air Act's requirement that applications for variances be granted or denied within 65 days. In light of the consistency of purpose of the two statutes and the strength of the commitment to environmental protection embodied in SEPA, the court rules that the 65-day deadline in the Clean Air Act may be deferred where additional time is needed to prepare an EIS. Nor is SEPA inconsistent with the federal Clean Air Act. Respondent's final argument was that the PSAPCA should not be required to prepare EISs because its internal review processes provide the functional equivalent of an EIS. The court finds, however, that the doctrine of functional equivalency is not applicable to an agency charged solely with prevention of air pollution.

While reversing the issuance of the variance in light of the policies of SEPA and the administrative record, the court emphasizes that this does not prevent a variance from being granted on remand. Finally, it denies appellants' request for attorney fees on each of the five alternative grounds presented.

The full text of this opinion is available from ELR (20 pp. $2.75, ELR Order No. C-1208).

Counsel for Appellants
Michael E. Nelson, Deborah A. Shore
501 Third Ave., Seattle WA 98104
(206) 623-0967

Counsel for Respondent
C. John Newlands, Robert F. Baker, Keith D. McGoffin
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn
12th Floor, One Washington Plaza, Tacoma WA 98402
(206) 462-4500

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]