Environmental Quality Commission v. City of Coos Bay

No. CA A107070 (14 P.3d 649) (Or. Ct. App. November 22, 2000)

ELR Digest

The court reverses a portion of a state environmental agency order that imposed a civil penalty against a city for discharging sewage sludge without a permit in violation of an Oregon statute. The city was granted a national pollutant discharge elimination system (NPDES) permit to operate a sewage disposal system. In September 1996, one of the system's pipes ruptured and spilled between 2,000 and 5,000 gallons of partially treated sewage sludge into nearby tidal wetlands. A hearing officer fined the city $ 1,500 for the spill and for violating the terms of its NPDES permit, but the agency's appellate division imposed an additional $ 3,900 against the city pursuant to a state statute that prohibits persons from discharging wastes into state waters without "first obtaining a permit" from the state environmental agency. The court first holds that the appellate division erred in concluding that the city violated thestate statute. The city had an NPDES permit, and a discharge in violation of a permit's conditions does not amount to discharging without a permit. The statute says nothing about violating the terms of the permit. It only states that the operator of a disposal system must obtain a permit before any discharge. Moreover, the agency's construction of the statute would render meaningless a second statute that prohibits persons from violating the terms of their permits.

The full text of this opinion is available from ELR (3 pp., ELR Order No. L-304).

Counsel for Respondent
David F. Coursen, Ass't Attorney General
Attorney General's Office
100 Justice Bldg.
1162 Court St. NE, Salem OR 97310
(503) 378-6002

Counsel for Petitioner
C. Randall Tosh
Ormsbee, Corrigall, McClintock & Tosh
936 Central Ave., Coos Bay OR 97420
(541) 269-1123

[31 ELR 20308]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]