Chemithon Corp. v. Puget Sound Air Pollution Control Agency

No. 8633-2-1 (640 P.2d 1085, 31 Wash. App. 276, 18 ERC 1647) (Wash. Ct. App. February 16, 1982)

The court upholds a penalty imposed for violation of a visual opacity standard even though appellant did not violate the companion particulate standard. It rejects appellant's argument that the visual opacity test creates only a presumption of illegal pollution subject to rebuttal proof that actual emissions are within particulate standards. The opacity standard is independent of the particulate standard. The court declines to speculate why lawful particulate effluents mixed with nonpolluting water vapor create unlawful pollution, observing that there are possible rational bases for this rule.

Counsel for Appellant
J. Richard Aramburu
505 Madison St., Seattle WA 98104
(206) 625-9515

Counsel for Respondent
Keith D. McGoffin
Rovai, McGoffin, Rentel & Turner
818 S. Yakima Ave., Tacoma WA 98405
(206) 272-9303

JAMES and WILLIAMS, JJ., concur.

[12 ELR 20420]

SWANSON, Judge.

Chemithon Corporation appeals a fine for violating a regional air pollution regulation.

Puget Sound Air Pollution Control Agency (PSAPCA) is a regional air pollution control agency which adopted procedural and substantive rules, under the heading Regulation I, to implement its authority. Among the Regulation I rules is § 9.03, which pertains to visual opacity standards and states in part:

(b) After July 1, 1975, it shall be unlawful for any person to use or allow the emission of any air contaminant . . . which is:

(1) Darker in shade than that designated as No. 1 (20% density) . . .

(e) This section shall not apply when the presence of uncombined water is the only reason for the failure of the emission to meet the requirements of this section.

Section 9.09, which pertains to particulate emission standards, provides in relevant part:

It shall be unlawful for any person to cause or allow the emission of particulate matter if the emission is in violation of Section 9.03 or if the particulate matter discharged into the atmosphere from any single source exceeds the following weights at the point of discharge: . . .

(Emphasis added.) The penalties for violating any of the standards are set forth in § 3.29 of Regulation I:

In addition to or as an alternate to any other penalty provided for herein or by law, any person who violates any of the provisions of this regulation shall incur a penalty in the form of a fine in an amount not to exceed two hundred fifty dollars per day for each violation.

(Emphasis added.)

On September 17, 1976, a PSAPCA enforcement officer made a visual opacity observation of a plume rising from a stack of a Chemithon plant and discovered the plume had a density of 50 to 80 percent. As a result of this observation, a $250 penalty was imposed on Chemithon for violating § 9.03. Chemithon appealed the penalty to the Pollution Control Hearings Board (Board), presenting evidence that the stack emission at the time of the alleged violation was within the particulate weight standards established by PSAPCA. The Board found that the particulate emissions were within the weight standards established by PSAPCA, but affirmed the penalty notwithstanding such findings, reasoning that Chemithon violated a separate visual opacity standard. On review, the superior court held the findings and conclusions of the Board were not clearly erroneous nor arbitrary or capricious and upheld the penalty.

Chemithon argues that it should not be fined for violation of the opacity standard, § 9.03, when the requirements as established by the particulate standard, § 9.09, are not also violated. According to Chemithon, the visual opacity test is a less reliable measure of pollution in a stack emission than actual particulate analysis of the emission. From this premise, Chemithon reasons that the visual opacity test creates only a presumption of illegal pollution and is subject to rebuttal proof that actual emissions are within particulate standards; thus, superior particulate evidence should rebut opacity observations. Chemithon states that Regulation I did not intend that a plant emitting dry (particulate) pollutants up to the amount allowed in § 9.09 complies with the Regulation, but a plant emitting the same pollutants mixed with water, a nonpollutant, is subject to a civil penalty because of the § 9.03 opaqueness standard, especially since § 9.03 is not a "cosmetic" regulation. Since PSAPCA requires Chemithon to demonstrate that all particulate emissions have been removed in order to be exempt from the visual opacity standards, Chemithon asserts it is being fined merely because it mixes harmless water vapor with an allowable amount of particulate pollution.

We are unpersuaded by Chemithon's argument and hold a visual opacity civil penalty legal even when the particulate standards are not violated. The language of § 3.29 makes it clear that a violation of any of the provisions of Regulation I will subject the violator to a civil penalty. Furthermore, the Pollution Control Hearings Board provided that a person shall violate § 9.09 if he violates the opacity standards in § 9.03, or if he exceeds the particulate standards in § 9.09. We believe that violations of § 9.03 may be determined independently of the particulate standard of § 9.09. It does not matter that water vapor might be the primary cause of the observed visual opacity. For the uncombined water exception [12 ELR 20421] of § 9.03 to apply, the effluent must be free of all particulate contaminants. Chemithon Corp. v. Puget Sound Air Pollution Control Agency, 19 Wash.App. 689, 577 P.2d 606 (1978). We do not speculate here why the Board decided that lawful particulate effluents when mixed with nonpolluting water vapor create unlawful pollution. It is enough to say that there are possible rational bases for the Board's decision; for example, particulates uncombined with water may dissipate resulting in no harm, but when combined with water the particulates may quickly fall to earth and have a harmful effect.

The judgment of the superior court is affirmed.