City of Klamath Falls v. Environmental Quality Commission , 119 Or. App. 375 ( 1993 )

RIGGS, J.

The City of Klamath Falls (the city) seeks review of the Environmental Quality Commission’s (EQC) contested case order denying the city’s request for certification of the proposed Salt Caves hydroelectric project for compliance with applicable water quality standards. The director of the Department of Environmental Quality (DEQ) denied the city’s request, ORS 468B.040, and the city sought EQC’s review. See ORS 468.035; ORS 468.070. The state agency certification procedure that is involved here is required by section 401 of the Federal Water Pollution Control Act. 33 USC § 1341.

In its first assignment, the city asserts that EQC and DEQ waived the certification requirement. Section 401 provides that a failure or refusal by the state certifying agency to act on a certification request within one year after its receipt results in a waiver. Although the director’s decision was made well within the one-year period, EQC did not issue its fined order within that period.

ORS 468B.040 provides:

“The Director of [DEQ] shall approve or deny certification of any federally licensed or permitted activity related to hydroelectric power development, under section 401 * * *.”

That clear statute notwithstanding, the city argues that the director’s decision is not the relevant one. It maintains that certification is subject to and must be determined in a contested case proceeding, which was and could only be held before EQC. Therefore, according to the city, the date of EQC’s contested case order is determinative of whether the denial of certification occurred within one year.

Even assuming the correctness of its other premises, the city’s argument confuses a procedural mechanism that state law provides with the requirement of section 401 that action on a request take place within one year. The director is specifically assigned the responsibility for acting on certification requests, and he did so here in a timely manner. Had the city not invoked its right to a contested case proceeding, the director’s decision would have been final. Although the city had every right to pursue a review, we do not construe section 401 as contemplating that an applicant may benefit from the running of the one year period while review is taking place, at the applicant’s instance, of the denial of certification by the entity that is statutorily designated to make that decision. We reject the city’s first assignment.

In its second assignment, the city argues that EQC erred in its conclusion that the increase in water temperature that the project would cause on part of the Klamath River at some times of the year is a per se violation of OAR 340-41-965(2)(b)(A). That rule provides, as material, in connection with waste discharges and other activities conducted in the trout producing waters of the Klamath Basin, that

“[n]o measurable [temperature] increases shall be allowed outside of the assigned mixing zone, as measured relative to a control point immediately upstream from a discharge when stream temperatures are 58°F. or greater; or more than 0.5°F. increase due to a single source discharge when receiving water temperatures are 57.5°F. or less* * *.”

The city agrees that the project would result in an increase in water temperature in an amount exceeding the numerical limits specified in the rule. However, it contends that, given EQC’s express finding that the project “would not be adverse to the trout or the fishery” and given that the rule’s purpose is to protect trout, the rule should not be “mechanically” applied to prevent certification of the proposed project. EQC disagreed, stating:

“Contrary to the City’s argument, it is the EQC’s opinion that the Temperature standard is absolute as a matter of law. That is, the standard is violated by an increase exceeding the prescribed numeric criterion; no additional showing of adverse impact to a beneficial use is required.”

According to the city, EQC’s interpretation, that the temperature specifications in the rule are absolute even when the harm to be prevented by the rule does not exist, creates an “absurd result.” Even assuming that we would have authority to reject the agency’s interpretation of the rule if it were absurd, it is not. Whatever their purposes may be, administrative rules may be written broadly to cover many situations of varying kinds that pose a generic threat to the objects of their protection. Subject only to constitutional and statutory limitations, such rules may — and perhaps must — be applied in all circumstances to which they are expressly applicable, without a specific showing that the factors motivating their promulgation are present in every particular case to which they literally apply. See ORS 183.310(8). In this case, EQC’s finding that the project would not be detrimental to trout was made in conjunction with its determination that the project would not violate the anti-degradation standards under rules other than OAR 340-41-965(2)(b)(A). The violation of the temperature standards under that rule was an independent ground for denying certification, and we find no error in EQC’s understanding that the rule means what it says about permissible temperature variations or that what it says is applicable to the temperature variations involved here.

However, the city also argues that EQC did not consider everything that the rule says. In addition to its temperature specifications, the rule also defines where in the waterway the temperature requirements apply, i.e., “outside of the assigned mixing zone, as measured relative to a control point immediately upstream from a discharge.” The city asserts:

“Nothing in the decision even attempts to define the Project ‘discharge,’ its ‘mixing zone’ or a ‘control point immediately upstream,’ or to state how the Project will ‘increase’ temperature under those terms. Instead, [EQC] simply ignores the literal language of the regulation that it purports to be implementing in an ‘absolute’ fashion.

“The reason for [EQC’s] silence on these terms is that, as readily conceded by DEQ staff on cross-examination, hydroelectric projects do not have ‘discharges,’ ‘mixing zones’ or ‘control points.’ The use of these terms in the temperature standard reflects the fact that, as DEQ admits, the standard was written for point source discharges, where waste-water is discharged into a river from, for instance, a factory pipe, creating an artificial heating of river water.”

The city concludes that the rule cannot be applied, at least literally, to projects of the kind in question.

In our view, that argument proves too much. The locational proviso in the rule is that the temperature requirements apply to all waters in the regulated area that are outside assigned mixing zones; if there is no mixing zone for the project, then the affected waters are necessarily not in an assigned mixing zone. If the city’s point is that the rule was meant to apply only to discharges of a specific kind, that understanding is belied by the fact that OAR 340-41-965(2) provides that, within the regulated limits, “[n]o wastes shall be discharged and no activities shall be conducted.” (Emphasis supplied.) The locational language in the rule may not be a model of clarity. However, EQC’s interpretation of it is reasonable and is entitled to considerable weight in our review. See, e.g., 1000 Friends of Oregon v. LCDC (Lane Co.), 305 Or 384, 389-92, 752 P2d 271 (1988). We decline to disturb it. The remaining points that the city advances under this assignment require no separate discussion.

The city contends in its third assignment that EQC erred by not requiring one of its members to recuse herself for bias. It maintains that, as a former attorney with the Oregon Department of Justice, the commissioner had participated in an advocacy or advisory role in a number of matters concerning water quality generally and the siting of hydroelectric facilities, including the Salt Caves project, specifically. In response to the city’s recusal motion, the commissioner stated on the record that her “prior legal work did not involve factual questions dealing with water quality, did not involve legal questions dealing directly with water quality matters, and did not involve legal issues dealing with the certification process that is before the EQC at this time.” She stated further that “she had no exposure to facts * * * that could bear on the water quality issues before the Commission. ’ ’ The city has not refuted those assertions, and it has not made the showing necessary to obtain a reversal on this ground. See Davidson v. Oregon Government Ethics Comm., 300 Or 415, 429, 712 P2d 87 (1985).

Affirmed.