Summary of a Recent
Judicial Development in
Environmental Law

CAFO General Pollution Discharge Permit Did Not Violate
State's Anti-degradation Policy

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Community Association for Restoration of the Environment v. Department of Ecology, 205 P.3d 950 (Wash. Ct. App. 2009), the Washington Court of Appeals affirmed the decision of the Pollution Control Hearings Board (PCHB). The PCHB affirmed the decision of the Washington Department of Ecology (Department), which issued a general pollution discharge permit that applied to concentrated animal feeding operations (CAFOs). With a general permit, CAFOs were allowed to apply nitrogen-rich animal manure to crops as fertilizer. The plaintiff contended that the PCHB's decision did not adequately protect groundwater supplies. The instant court held that the permit did not violate the state's anti-degradation policy or its implementing regulations by not requiring groundwater monitoring.

Background

In 2004, the Department drafted a general pollution discharge permit covering CAFOs. Id. at 953-54. The permit prohibited CAFOs from discharging any pollutants except in cases of extreme weather. Id. at 954. It also prohibited field application of fertilizer exceeding agronomic rates. Id. Discharges were authorized only if a CAFO made a satisfactory argument to the Department before any discharge occurred and an "overriding consideration of the public interest [would] be served." Id. CAFOs wishing to be covered by the general permit were required to submit a Comprehensive Nutrient Management Plan (CNMP) containing best management practices as part of the permit application, and to conduct annual soil monitoring to assure soil nitrate levels were appropriate. Id. at 954-55. They were also required to maintain storage lagoons for runoff and unexpected events. Id. at 955. The permit required CAFO operators to develop a system to monitor lagoon levels such that leaks were prevented. Id. Finally, CAFO operators were required to keep certain records on site and make them available to the public upon the Department's request. Id.

After the Department issued the general pollution discharge permit, the plaintiff appealed to the PCHB. Id. Unsatisfied by the PCHB's decision, the plaintiff filed a petition for review in Thurston County Superior Court. Id. Thereafter, the parties jointly moved for direct review by the instant court. Id. at 955-56.

Arguments

On appeal, the plaintiff "challenged the PCHB's conclusion that it was reasonable for [the Department] not to require groundwater monitoring" as a piece of the CAFO permitting regime. Id. at 955.

Analysis and Holdings

When a PCHB order is held to be inconsistent with an agency rule, "no relief should be granted if 'the agency provides facts and reasons to demonstrate a rational basis for the inconsistency.'" Id. at 956. However, a court can grant relief if the court finds that a PCHB order is not supported by substantial evidence when the record is viewed in its entirety. Id.

In the instant case, the plaintiff argued that "the PCHB partially based its conclusion that groundwater monitoring was not necessary on finding of fact 56, which finding of fact [the plaintiff] argue[d] was clearly erroneous." Id. at 957. Finding of fact 56 provided:

Expert testimony was conflicting regarding the volume of specific discharge, and the resulting threat to groundwater, that can reasonably be expected from a "typical" waste storage facility covered by Washington's CAFO General Permit. We find the testimony of Ecology's and Intervenor's experts more credible on this point. [The plaintiff's] expert's estimated discharge volumes were calculated using waste treatment facility standards (designed to infiltrate) rather than waste storage facility standards (designed to prevent infiltration), resulting in an unrealistically high estimate of leakage.
Id.

Despite the plaintiff's efforts to persuade the court to review the fact finder's credibility determinations, the court deferred "to the PCHB's finding that [the Department's] expert witness was more credible than [the plaintiff's] expert witness" and declined to further review this finding of fact. Id. at 957. Therefore, the court held that substantial evidence supported PCHB's finding of fact 56. Id.

Next, the court addressed the plaintiff's argument that "PCHB erred in concluding that the permit's failure to require groundwater monitoring [was] reasonable because it 'd[id] not protect the waters of the State in violation of [the Washington Pollution Control Act] and its implementing regulations.'" Id. at 957-58. Once again, the court would not replace the judgment of the fact finder with the judgment of the court, particularly because "[t]he issue of whether soil monitoring, lagoons, and diversion from production areas [would] protect groundwater [was] within [the Department's] expertise." Id. at 959. Ultimately, the court held that the general pollution discharge permit did not violate the state's anti-degradation policy or its implementing regulations by not requiring groundwater monitoring. Id.

The case was decided on April 21, 2009.