This matter having come before the Lewis County Hearings Examiner pursuant to Ordinance No. 1147, the Appellants, Chehalis Indian Tribe, Department of Natural Resources, appearing by and through their representative, Michael McGinnis, and Co-Appellant, Chehalis River Council, Inc., appearing by and through their representative, Merrily Knutsen; the Applicant, Fire Mountain Farms. Inc., a Washington corporation, appearing by and through its President, Robert J. Thode; and Lewis County, appearing by and through its representatives, Michael Zengel and Chris Cooper. and the Land Use Hearings Examiner having received the full record established below, and having heard the arguments of the representative for all parties, and being otherwise familiar with the files and records herein, now hereby issues the following decision denying the Appellants' Petition for Appeal.
I. BACKGROUND
A. The Application for Permit.
The Applicant, Fire Mountain Farms, Inc., seeks a solid waste permit from Lewis County for the application of biosolids upon agricultural lands. The particular biosolids proposed to be applied are the product of municipal sewage treatment for various local communities. The Applicant seeks to apply these biosolids to agricultural fields located at 653 Bunker Creek Road, approximately two miles northwest of the community of Adna.
The application of biosolids to agricultural fields has been a source of fierce debate both locally and internationally. The beneficial aspects of their use are that they can provide significant nutritional benefit to agricultural fields, while at the same time relieving municipalities of the burden of storing sludge waste produced in the process of treating sewage effluent. The concerns with the use of such products are that the short and long term consequences of their application are not fully known. In particular, there is much concern over the inclusion of toxic materials, including heavy metals, within biosolids. Scientists continue to study the effect of the uptake of such materials into plant life as well as the migration of such materials into surface waters, ground waters, and adjoining properties. It is generally recognized that the uptake or migration of such toxic substances is affected by many variables, including rainwater, soil conditions, pH levels and the nearness of surface waters and ground waters.
B. The Threshold Determination/Mitigated Determination of Non-Significance.
This application was received by Lewis County in or about May of 1997. Lewis County is the lead agency for the review of this application pursuant to SEPA and Michael Zengel is designated as the responsible official. Upon review of the project the County issued its mitigated determination of non- significance (MDNS) on August 1.5. 1997. Pursuant to the terms of the MDNS, the County's threshold determination was that the proposal does not have a probable significant adverse impact on the environment under RCW 43.21C.030(2)(c) subject to certain mitigating measures. The MDNS then set forth twelve mitigating measures which include application of biosolids on areas subject to the state shorelines management act without further permit; a two hundred foot flagged buffer around all wells; a prohibition on application between October 16 and May 14 of each growing season: the application of only approved biosolids; approval of all off-loading and storage sites; and miscellaneous other conditions. As required by regulation the County gave public notice of its threshold determination and requested public comment to be submitted by September 10, 1997. Within that time frame the County received comment from various members of the public, including the Appellants. After considering the comments received, the County decided that no changes need be made to its MDNS.
C. Reasons for Appeal.
The Appellants have challenged the County's MDNS for a variety of reasons. The three general concerns expressed by the Appellants are that:
1. The MDNS is based upon an incomplete environmental checklist in violation of WAC 197-11-330:
2. The Applicant's proposal has not been properly defined pursuant to WAC 197- 11-060(3)(a); and
3. The MDNS is not based upon information reasonably sufficient to evaluate the environmental impact of a proposal as required under WAC 197-11-335.
The Appellants more specific concerns include the following:
1. The chemical analyses of the biosolids proposed to be applied on file with the County is not sufficiently complete and lacks information relative to the total phosphorus and potassium present in the product;
2. No soil analysis was available at the time of the environmental review;
3. There is insufficient information relative to hydrology, geology, and surface water flows;
4. The Applicant has not provided sufficient calculations as to exact amounts proposed to be applied;
5. No sufficient monitoring protocols have been established for tracking heavy metals and other toxic substances;
6. No mitigation measures have been described for storm water runoff, and
7. The application proposes to follow best management practices issued by the State which are in draft form at this time and have not been officially adopted, leading to confusion as to what specific practices might actually be followed.
In response to these concerns the County explains that all of the Appellants' concerns have been recognized and will somehow be addressed. The County notes specifically that the SEPA review is only the first stage in the process of allowing the Applicant to apply biosolids to his fields, and that before the Applicant can proceed he must first obtain a solid waste permit from the County. In the course of obtaining this permit the County will address in much greater detail many of the concerns expressed by the Appellants, that is, the permitting process will involve more extensive soil analysis, will establish monitoring protocols, will require a site specific monitoring plan and hydrology study and will establish exact application rates based upon the final soil analysis. To restate the County's position, they acknowledge that the various concerns expressed by the Appellants need to be addressed at the permitting state, but do not feel that these issues need to be addressed at the threshold determination state.
II. JUDICIAL REVIEW OF AN MDNS
Before the County can process the Applicant's solid waste permit, it must first make a "threshold determination" of whether the biosolids project is a "major action significantly affecting the quality of the environment." RCW 43.21C.030(2)(c). A threshold determination by the responsible official for the County is required for any proposal that meets the definition of "action" under SEPA and is not otherwise exempt. WAC 197-11-310-1 and -2. It is the Applicant's duty to prepare the environmental checklist which must provide information reasonably sufficient to evaluate the environmental impact of the proposal. WAC 197-11-315 to 335. The responsible official must then thoroughly consider the proposal's potential environmental significance as documented in the environmental checklist. WAC 197-11-315 (1)(a).
The responsible official then determines whether the proposal is "likely to have a probable significant adverse environmental impact." WAC 197-11-330(1)(b). He then renders a "determination of significance" (DS) or a "determination of non-significance" (DNS) or, finally, a "mitigated determination of non-significance" (MDNS).
An MDNS involves changes or conditions to a project so as to eliminate its significant adverse environmental impacts. WAC 197-11-350. An MDNS avoids the need for a formal environmental impact statement, although its requirements may be nearly as comprehensive.
B. Standard of Review of a MDNS. The standard of review for the MDNS has been thoroughly examined in the recent decision of Anderson v. Pierce County, 86 Wn. App. 2909 936 P.2d 432 (May, 1997). The Court noted that the MDNS process has been viewed favorably by our courts, our legislature, and the Department of Ecology:
The Legislature created the MDNS process to encourage agencies and applicants to work together to reduce the impacts of a project below the threshold level of significance. WAC 197-11-350. With an MDNS, promulgation of an EIS and intense public participation are rendered unnecessary because the mitigated project will no longer cause significant adverse environmental impacts.
Use of mitigation to bring projects into compliance with SEPA, without promulgation of an EIS, has been viewed favorably by the Washington courts. The Washington State Supreme Court deems the MDNS process to be "imminently sensible." The Court of Appeals, Division One, has held that:
'SEPA encourages compromise and accommodation by requiring that the decision maker consider mitigation and state why it is inadequate to relieve the adverse impact. When the decision maker imposes some mitigation measures, this does not necessarily mean that unmitigated impacts no longer exist or will be totally eradicated by mitigation, but merely that as mitigated, the project as a whole is acceptable.'
Similarly, the Washington Department of Ecology (DOE) has favorably characterized the MDNS process as conducive to efficient, cooperative reduction, or avoidance of adverse environmental impacts:
'The mitigated DNS provision in WAC 197-11-350 is intended to encourage applicants and agencies to work together early in the SEPA process to modify the project and eliminate significant adverse impacts. The mitigated DNS process is not intended to reduce the amount of environmental review done on a project, but to reduce the paperwork needed to document the process.'
Anderson, Supra at 303, 304. [Citations omitted.]
The standard of review for a decision to issue an MDNS is the "clearly erroneous" standard. Pease Hill Community Group v. County of Spokane, 62 Wn. App. 800, 816 P.2d 37 (1991); Anderson v. Pierce County. Supra at 302: "A finding is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the record is left with a definite and firm conviction that a mistake has been committed. For the MDNS to survive judicial scrutiny, the record must demonstrate that 'environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA,' and that the decision to issue a MDNS was based on information sufficient to evaluate the proposal's environmental impact. Moreover, the mitigation measures imposed must be reasonable and capable of being accomplished. RCW 43.21C.060; WAC 197-11-660(1)(c). An agency's decision to issue an MDNS and not require an EIS must be accorded substantial weight. RCW 43.21C.090." [Citations omitted.]
III. DECISION
As the above case law makes clear, I am not asked to decide whether I would make the same decision as was made by the responsible official with the County. Rather, it is my obligation to decide whether the responsible official's decision was "clearly erroneous", and, if not, then I am obligated to affirm the MDNS.
I am unable to conclude that the responsible official's decision was clearly erroneous and therefore I must deny the Appellants' Petition for Appeal. The record demonstrates that the responsible official carefully considered the environmental factors raised by the Appellants and that the threshold decision was based on information sufficient to evaluate the proposal's environmental impact. The fact that some environmental impacts will not be fully resolved until the permitting process does not mean that those potential impacts have not been considered when reaching the threshold determination. Rather, the County has specifically acknowledged each concern raised by the Appellants and is prepared to more fully address each one before authorizing a permit for biosolids application. Stated differently, the County recognizes that with the mitigation requirements imposed, and with the additional steps to be carried out through the permitting process, the project as a whole is acceptable.
For all of the foregoing reasons the Appellants' Petition for Appeal is denied.
DATED this day of December, 1997.
Mark C. Scheibmeir,
Lewis County Hearings Examiner
Order Denying Appeal - 7
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