Brooks Manufacturing Co. v. Northwest Clean Air Agency ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BROOKS MANUFACTURING CO., )
a Washington corporation, ) No. 79645-3-I
Appellant, ) DIVISION ONE
v.
) UNPUBLISHED OPINION
NORTHWEST CLEAN AIR AGENCY, )
)
Respondent. ) FILED: September 16, 2019
LEACH, J. — Brooks Manufacturing Company appeals a superior court
order affirming the Pollution Control Hearings Board (PCHB). RCW 70.94.153
requires a person to file a notice of construction application when he intends to
replace emission control technology on a stationary source emission unit.
Brooks did not do this before it replaced its baghouse, the device it uses to
control emissions escaping from its burning of wood shaving by-products. The
Northwest Clean Air Agency (NWCAA) issued Brooks a notice of violation and
corrective action order. Brooks appealed to the PCHB, which affirmed the notice.
The superior court affirmed the PCHB.
Brooks claims that the baghouse was not “emission control technology”
and that it did not replace the baghouse. Because Brooks does not show that
No. 79645-3-I I 2
the PCHB erred in its interpretation and application of the statute and substantial
evidence supports the PCHB’s challenged finding of fact, we affirm.
FACTS
Brooks is a Bellingham, Washington, company that makes engineered
wood products for utilities and produces wood shavings as a by-product. Brooks
uses a boiler to provide steam for its lumber-drying kiln. In 1989, it converted the
boiler from gas fired to wood burning to allow it to burn the wood shaving by
product to produce steam for the kiln. The baghouse captures fine particulate
matter emitted from the wood-fired boiler.
In 2007, Brooks’s baghouse was corroding, and its skin and hopper were
deteriorating from rust. Superior Systems Inc. submitted a bid to “supply & install
a replacement baghouse” for Brooks’s existing boiler. Superior installed the
replacement baghouse in 2008.
Brooks noticed that the baghouse was in failing condition again in 2013.
Superior submitted a bid to “supply & install a replacement baghouse.” Its bid
stated that it would “dismantle the existing filter and install the new [one] in the
same location.” It said it would reuse the “existing service platform access ladder
and lower support structure. All the rest of the [baghouse would] be fabricated
new.”
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In August 2014, Superior replaced the mild steel baghouse shell with a
stainless steel one. It installed the new shell in the existing support structure.
Superior replaced all of the parts that came into contact with exhaust air from the
boiler with identically sized stainless steel parts. These included the baghouse
collector housing, the exhaust outlet, the clean gas plenum, the tube sheet, the
gas inlet, and the hopper. It did not replace parts that did not come into contact
with exhaust air, including the magnehelic, controls and electrical conduit, inlet
piping, catwalks, and ladder. It also did not replace the existing filter bags and
cages, the pulse air header, or the valves.
Brooks did not contact the NWCAA before or after Superior did the
baghouse work in August 2014. In November 2014, an NWCAA inspector
examined the baghouse and talked with Brooks’s technical director. The
inspector then relayed a description of the changes to an NWCAA engineer to
determine whether Brooks was required to file a notice of construction for the
baghouse work. The inspector wrote, “Facility said that this [was a] like-for-like
replacement for the baghouse that was permitted March 10, 1989. The new
baghouse is the same design and size with the only difference. . . being that it
was constructed of stainless steel. This baghouse collects ash from the 250 hp
wood fired boiler exhaust.”
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The engineer concluded that Brooks “replaced” the baghouse, making its
action subject to the requirements of RCW 70.94.153. The NWCAA director of
compliance agreed. On December 15, 2014, the NWCAA issued Brooks a notice
of correction and corrective action because it did not submit the statutorily
required notice of construction application before replacing the baghouse in
2014.
Brooks appealed the notice to the PCHB. After a fact-finding hearing, the
PCHB affirmed the NWCAA’s determination, concluding that “the work performed
in 2014 on the Brooks baghouse constituted replacement and therefore a notice
of construction application was required.” Brooks appealed this decision to the
superior court, which affirmed the PCHB. Brooks again appeals.
STANDARD OF REVIEW
The Washington Administrative Procedure Act (WAPA)1 governs review of
PCHB orders.2 This court reviews the PCHB’s action from the same position as
the superior court.3 We apply WAPA standards directly to the record created
before the PCHB.4 When we review agency action under WAPA, the party
1Ch. 34.05 RCW.
2RCW 43.21B.180; Port of Seattle v. Pollution Control Hr’qs Bd., 151
Wn.2d 568, 587, 90 P.3d 659 (2004); RCW 34.05.510, .526.
~ Port of Seattle, 151 Wn. 2d at 587; Skaqit Hill Recycling, Inc. v. Skagit
County, 162 Wn. App. 308, 317-18, 253 P.3d 1135 (2011); RCW34.05.558.
~ Port of Seattle, 151 Wn. 2d at 587; Skagit Hill Recycling, 162 Wn. App.
at 317-1 8; RCW 34.05.558.
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No. 79645-3-lI 5
challenging the action has “[tjhe burden of demonstrating the invalidity of agency
action.”5
We interpret statutes de novo.6 When we interpret a statute, our goal is to
“give effect to the legislature’s intent.”7 So we look first to the legislation’s plain
language, “considering the text of the provision in question, the context of the
statute in which the provision is found, related provisions, and the statutory
scheme as a whole.”8 If the plain language of the statute results in two or more
reasonable interpretations, it is ambiguous.9 Only if the statute is ambiguous do
we apply traditional techniques of statutory construction.1°
A court must grant relief from a PCHB order if the party challenging it
shows that the order was not supported by substantial evidence “when viewed in
light of the whole record before the court.”11 Substantial evidence is “a sufficient
quantity of evidence to persuade a fair-minded person of the truth or correctness
of the order.”12 We will overturn an agency’s findings only if they are clearly
erroneous and the court is “definitely and firmly convinced that a mistake has
~ RCW 34.05.570(1)(a); Port of Seattle, 151 Wn.2d at 587.
6 Port of Seattle, 151 Wn.2d at 587.
~ TracFone Wireless, Inc. v. Dept of Revenue, 170 Wn.2d 273, 281, 242
P.3d 810 (2010).
8 State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013).
~ City of Seattle v. Winebrenner, 167 Wn.2d 451, 456, 219 P.3d 686(2009).
10 Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 (2006).
11 RCW 34.05.570(3)(e).
12 Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510(1997).
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No. 79645-3-I I 6
been made.”13 This court does “not weigh the credibility of witnesses or
substitute our judgment for the PCHB’s with regard to findings of fact.”14 We
review de novo whether the PCHB correctly applied the law to its findings.15
ANALYSIS
Brooks makes two challenges to the PCHB decision. First, it contends
that the PCHB “erroneously interpreted . . . the law”16 about the terms “emission
control technology” and “replacement or substantial alteration” contained in RCW
70.94.153. And these asserted misinterpretations resulted in the PCHB
erroneously applying the law to the facts.17 Second, it claims that substantial
evidence did not support the PCHB’s finding of fact 3Q•18 And Brooks concludes
by claiming that given the legislative intent of RCW 70.94, it is entitled to operate
under its 1989 permit indefinitely. Because Brooks’s arguments fail, we affirm.
The Baghouse Is Emission Control Technology
First, Brooks contends that the baghouse is not “emissions control
technology” under the Washington Clean Air Act (Act).19 We disagree.
The legislature adopted the Act with the intent
13 Port of Seattle, 151 Wn.2d at 588 (quoting Buechel v. Dep’t of Ecology,
125 Wn.2d 196, 202, 884 P.2d 910 (1994)).
14 Port of Seattle, 151 Wn.2d at 588 (citing Bowers v. Pollution Control
Hr’gs Bd., 103 Wn. App. 587, 596, 13 P.3d 1076 (2000)).
15 Port of Seattle, 151 Wn.2d at 588.
16 RCW 34.05.570(3)(d).
17 RCW 34.05.570(3)(d).
18 RCW 34.05.570(3)(e).
19 Ch. 70.94 RCW; see RCW 70.94.440.
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No. 79645-3-I I 7
to secure and maintain levels of air quality that protect human
health and safety, including the most sensitive members of the
population, to comply with the requirements of the federal clean air
act, to prevent injury to plant, animal life, and property, to foster the
comfort and convenience of Washington’s inhabitants, to promote
the economic and social development of the state, and to facilitate
the enjoyment of the natural attractions of the statej201
The legislature declared as one of the purposes of the Act “to safeguard the
public interest through an intensive, progressive and coordinated statewide
program of air pollution prevention and control.”21 Consistent with this goal,
RCW 70.94.153 requires that
[amy person proposing to replace or substantially alter the emission
control technology installed on an existing stationary source
emission unit shall file a notice of construction application with the
jurisdictional permitting authority. For projects not otherwise
reviewable under RCW 70.94.152 [governing the notice
requirements for the construction of a new contaminant source], the
permitting authority may (1) require that the owner or operator
employ reasonably available control technology for the affected
emission unit and (2) may prescribe reasonable operation and
maintenance conditions for the control equipment.
(Emphasis added.)
The parties agree that RCW 70.94.153 applies to the baghouse work only
if the baghouse is “emission control technology.” They also agree that the Act
does not define “emission control technology.” They offer competing
interpretations of this term.
20 RCW 70.94.011.
21 RCW7O.94.011.
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No. 79645-3-I I 8
The PCHB interpreted the phrase to be “an umbrella term that includes
the equipment and devices used for emission control and the more abstract
concept of the applied science upon which the equipment and devices are
based.” And, quoting a dictionary definition of “technology,”22 Brooks asserts that
“emission control technology” has a narrower meaning and includes only abstract
things like “science, a method, study, or a process” and does not include tangible
objects. In particular, it does not include the actual equipment used to capture or
filter the emissions. The text of RCW 70.94.153 and the quoted purpose of the
Act support the PCHB’s interpretation.
First, Brooks contends that the Act’s plain language does not support a
broad meaning for “emission control technology.” In response, PCHB notes that
the first sentence of RCW 70.94.153 describes “emission control technology” as
something that can be “installed on an existing stationary source emission unit.”
The legislature’s use of the word “installed” makes clear that it considered
“emission control technology” to include tangible objects that one could attach to
22Webster’s New World College Dictionary 1470 (4th ed. 2000) defines
“technology” as
I The science or study of the practical or industrial arts, applied
sciences, etc. 2 the terms used in a science, etc.; technical
terminology 3 applied science 4 a method, process, etc. for
handling a specific technical problem 5 The system by which a
society provides its members with those things needed or desired
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No. 79645-3-I / 9
a stationary emission unit. So, the plain language of the statute supports the
PCHB’s interpretation.
Second, Brooks points to the legislature’s use of the phrase in other
sections of the Act as supporting its interpretation. For example, RCW
70.94.030(6) defines “[blest available control technology” as “an emission
limitation . . . that the permitting authority. . . determines is
achievable. . . through application of production processes and available
methods, systems, and techniques.” Similarly, RCW 70.94.030(20) defines
“[rjeasonably available control technology” as “the lowest emission limit that a
particular source. . . is capable of meeting by the application of control
technology that is reasonably available considering technological and economic
feasibility.”
But these examples and the others cited by Brooks do not support a
narrow definition of “emission control technology.” Because we look for a
meaning that harmonizes all the legislature’s uses of the same phrase in the
Act,23 the different ways it used this phrase demand a broad definition, not a
narrow one. And we must avoid an interpretation that creates an inconsistency
among the various statutes using the phrase.24 The narrow abstract meaning
advanced by Brooks would make RCW 70.94.153 nonsensical. Brooks does not
Dep’t of Revenue v. Fed. Deposit Ins. Corp., 190 Wn. App. 150, 157-58,
23
359 P.3d 913 (2015).
24 State v. Bash, 130 Wn.2d 594, 602, 925 P.2d 978 (1996).
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No. 79645-3-I /10
explain how one could attach “science, a method, study, or a process” to an
existing stationary emission unit. But his offered definition would make this the
event triggering the need for a notice of construction application.
Requiring review of devices used to control emissions when existing
devices need replacement furthers the legislatively declared “public policy to
preserve, protect, and enhance the air quality for current and future
generations.”25 The interpretation of “emission control technology” advanced by
Brooks would allow a polluter to use and replace once-approved devices forever,
regardless of advances in technology occurring during the useful life of an
approved device. This would frustrate using technological advances to “enhance
the air quality for current and future generations.”
We agree with the PCHB that the legislature used “emission control
technology” as “an umbrella term that includes the equipment and devices used
for emission control and the more abstract concept of the applied science upon
which the equipment and devices are based.” The PCHB did not err in
concluding that “emission control technology” includes the baghouse.
Brooks Reilaced the Baghouse
Brooks also claims that RCW 70.94.153 does not apply because it did not
“replace” the baghouse. Brooks challenges the sufficiency of the evidence
25 RCW 70.94.011.
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No. 79645-3-I /11
supporting the PCHB’s finding that it replaced the baghouse. It also challenges
the PCHB’s conclusions of law that “the work performed in 2014 on the Brooks
baghouse constitutes replacement,” that it was not a “similar parts replacement,”
and that “{t]he replacement of 90 percent of a baghouse, using mostly new parts
and a new shell fabricated from a different, more expensive, and much longer
lasting material, constitutes replacement of emission control technology.” We
reject these claims.
i. Substantial Evidence Supports the PCHB Finding That Brooks Replaced the
Baghouse
Brooks challenges the sufficiency of the evidence to support finding of fact
30:
At the hearing, after having an opportunity to review
additional information, including all of the information about
exactly which parts were replaced and the cost of the
replacement, Mr. Mahar’s opinion remained unchanged that the
alteration of the Brooks baghouse constituted a replacement of
the baghouse that required a notice of construction application.
Mr. Mahar’s original opinion was bolstered by: (1) that the
fabrication took place off site and what he considered the
replacement baghouse was then brought on site; (2) that Brooks
made a substantial investment in stainless steel to extend the life
of the baghouse; and (3) that the parts that were not replaced
were primarily parts that did not come into contact with exhaust
air, were not parts that were involved in the control of air emission,
or were parts that had already been replaced recently because
they were consumable, such as the filter bags. Overall, Mr.
Mahar summed up the situation by saying the bag house had been
90 percent replaced and he still concludes that the work
constituted replacement of the baghouse. D. Mahar Testimony,
Ex. R-31.
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No. 79645-3-I /12
Brooks first contends that this finding was not supported by substantial evidence
because the PCHB based it on a single statement by Daniel Mahar.26 This does
not matter. Brooks cites no authority for the proposition that one witness’s
testimony is insufficient to support a finding of fact. And no witness directly
contradicted Mahar. The finding accurately summarizes Mahar’s testimony.
Mahar stated, “90 percent of the baghouse was replaced,” the “whole baghouse”
was “basically rebuilt,” and the metal used was “a significant portion of the
baghouse that makes it work and contains all the dirty air and functions to clean
it.” He said, “[Tb me it was replaced.”
Brooks directs this court to Mahar’s testimony identifying “all of the parts
that were [reused], including the structure, the ladder and catwalk, the airlock, the
blow pipes, and even the bags and cages.” But these statements do not
contradict his testimony that the baghouse was replaced. Rather, Mahar listed
these as examples of “options that you add on there to make it convenient to
service the equipment” or equipment that is “replaced on a regular basis” to
support his contention that the more functionally important parts of the baghouse
were replaced.
Brooks also points to the diagram of the parts replaced and the parts not
replaced on the bag house and a portion of Mark Wolfe’s testimony that Superior
26 Daniel Mahar is a professional environmental engineer or permit
engineer at NWCAA.
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No. 79645-3-I /13
reused some of the baghouse parts.27 But this evidence is not inconsistent with
the PCHB’s finding. And in asserting that this evidence contradicts this finding,
Brooks ask this court to reweigh evidence and determine credibility, which this
court will not do.28 Brooks does not show the lack of substantial evidence to
support the court’s finding.
ii. Brooks’s Baghouse Work Is a Replacement Subject to RCW 70.94.153
Brooks claims its baghouse work is not a replacement that triggers the
application requirement of RCW 70.94.153.
This statute obligates “[a}ny person proposing to replace or substantially
alter the emission control technology installed on an existing stationary source
emission unit shall file a notice of construction application with the jurisdictional
permitting authority.”29 NWCAA does not claim that Brooks “substantially altered”
its emissions with its baghouse work. It claims that Brooks’s baghouse work falls
within the actions the legislature described with the word “replace.”
The Act does not define ‘replace.” And it does not describe when a
company replaces enough parts of an emission control device for its action to
qualify as replacement. The parties assert different, reasonable interpretations of
the statute, making it ambiguous. To interpret an ambiguous statute, we may
27 Mark Wolfe is the general manager and part owner of Superior Systems
Inc.
28 Port of Seattle, 151 Wn.2d at 588 (citing Bowers, 103 Wn. App. at 596).
29 RCW7O.94.153 (emphasis added).
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No. 79645-3-I /14
look to a dictionary definition of an undefined term.3° Merriam Webster’s Third
New International Dictionary defines “replace” as “to place again : restore to a
former place, position, or condition.”31
Brooks’s work on the baghouse restored it to its former condition and
more. The new parts put the corroded baghouse in a condition superior to its
condition before the corrosion. Superior replaced mild steel parts exposed to
exhaust with more expensive stainless steel parts. These last longer and
extended the baghouse’s useful life longer, perhaps indefinitely. For this reason,
we reject Brooks’s claim that it was merely a similar parts replacement.
And Superior described its work as “dismantle the existing [baghouse] and
install [a] new [one] in the same location.” It said that it would reuse the
“existing . . . platform, access ladder and lower support structure” but that “[ajIl
the rest of the [baghouse would] be fabricated new.”
In addition, Brooks does not challenge the PCHB finding that “[t]he boiler
was shut down for two weeks in August 2014. . . . During the shutdown, the old
baghouse shell was removed from the Brooks site and the new one, fabricated
by Superior out of stainless steel, was brought in and placed into the existing
support structure.”
30Buchheit v. Geiger, 192 Wn. App. 691, 696, 368 P.3d 509 (2016) (citing
Cornu-Labatv. Hosp. Dist. No.2, 177 Wn.2d 221, 231-32, 298 P.3d 741 (2013)).
31 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1925 (2002).
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No. 79645-3-I /15
Dan Mahar testified that the “whole baghouse” was “basically rebuilt” and
that the metal used was “a significant portion of the baghouse that makes it work
and contains all the dirty air and functions to clean it.” The parts of the baghouse
Superior did not exchange for new parts were “options that you add on there to
make it convenient to service the equipment” such as the ladder or equipment
that is “replaced on a regular basis,” such as the bags.
Using a plain dictionary definition of the word “replace,” the unchallenged
findings and the evidence of Superior and Mahar show that Brooks’s baghouse
work was a replacement subject to the application requirements of RCW
70.94.153.
Brooks Is Not Entitled To Operate Indefinitely under Its 1989 Permit
Brooks contends that it is entitled to operate under its 1989 permit
indefinitely. It claims that “once a permit is issued, it is ‘good forever.” As noted
above, the legislature intended the Act to “secure and maintain levels of air
quality that protect human health and safety” through “an intensive, progressive,
and coordinated statewide program of air pollution prevention and control.”32 A
“good forever” permit to emit pollutants would frustrate this purpose. Brooks
makes no persuasive argument to the contrary.
32 RCW7O.94.011.
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Instead, Brooks raises the specter of environmental review. It states that
by filing a notice of construction application, it may trigger the State
Environmental Policy Act33 or that its baghouse may be subject to a reasonably
available control technology analysis that could result in a change of its operating
permit conditions. But the issue before this court is whether RCW 70.94.153
obligated Brooks to file a notice of construction. We conclude that it was.
Brooks’s fear of regulatory review has no place in our analysis.
CONCLUSION
We affirm. Brooks fails to establish that the PCHB made a finding
unsupported by substantial evidence or misapplied the law. The baghouse is
emissions control technology, and Brooks replaced it. This action subjected
Brooks to the requirements of RCW 70.94.153, which obligated it to file a notice
of construction.
—
F,
WE CONCUR:
‘1
Ch. 43.21C RCW.
1
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