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AGO 1954 No. 247 - April 23, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

POLLUTION CONTROL COMMISSION ‑- POWERS AND DUTIES ‑- DUTY TO SEEK INJUNCTIVE RELIEF AGAINST POTENTIAL POLLUTION.

1. The Pollution Control Commission does not have authority to seek injunctive relief against the zoning of areas for specific purposes.

2. The commission may seek injunctive relief against the discharge of industrial wastes into waters of the state if such matter tends to pollute such waters.

3. Whether or not the commission has the duty to seek injunctive relief in a specific case is a policy decision.

                                                                  - - - - - - - - - - - - -

                                                                   April 23, 1954

Honorable E. F. Eldridge
Director and Chief Engineer
Pollution Control Commission
408 Old Capitol Building
Olympia, Washington                                                                                                 Cite as:  AGO 53-55 No. 247

Dear Sir:

            We have your letter of April 6, 1954, in which you ask our opinion concerning the powers and duties of the Pollution Control Commission, with respect to seeking an injunction against rezoning an area for industrial purposes on the ground of potential pollution.  You advise that the King County Commissioners, with the advice of the King County Planning Commission, have zoned an area located at the south end of Lake Sammamish near Issaquah Creek, as an industrial area.  The Washington Iron Works has been granted permission to construct a plant in this area.

            You state that prior to this action hearings were held by the Planning Commission.  The Pollution Control Commission, by letter and orally at the hearings, indicated the pollution problems which, in its opinion, could be anticipated from  [[Orig. Op. Page 2]] this industrial area.  Because a state park and state fish hatchery will be affected, in the opinion of the Pollution Control Commission, by pollution from this area, it advised against the zoning.  At a recent meeting of your commission an interested party requested the commission to seek an injunction to prevent the use of the area for industry.  You request an opinion as follows:

            1. Does the commission have the authority to seek an injunction against the zoning of areas for specific purposes?

            2. Can the commission, by injunction, prevent an industry from locating in an area on the basis of an opinion as to the potential pollution problem which may be created, even if this opinion is based on experience?

            3. In case the commission does have this authority, is it obliged to seek injunctions on all industries where such a potential exists?

            In our opinion your questions may be answered as follows:

            1. No.

            2. The commission may seek an injunction, the granting or denial of which rests in the sound discretion of the superior court after due consideration of the facts in the individual case.

            3. Whether or not the commission must seek injunctive relief against the construction of a given plant on a specific location, is a policy matter resting in the sound discretion of the commission after consideration of the facts and circumstances in the individual case.

                                                                     ANALYSIS

            1. The statute which authorizes the Pollution Control Commission to make application for injunctive relief is RCW 90.48.060, which provides as follows:

            "Whenever, in the opinion of the commission, an emergency exists on account of any discharge or threatened discharge of waste matter which pollutes, tends to pollute, or contributes to the pollution of the waters of the state, it shall seek injunctive or abatement relief against such discharge or threatened discharge."

             [[Orig. Op. Page 3]]

            It is quite clear that the evil the legislature had in mind to prevent was the discharge of waste matter which would pollute the waters of the state.  The order of the Board of County Commissioners rezoning a particular tract as an industrial area, may be a step in the direction toward pollution but it certainly appears to be several steps removed therefrom.  Let us examine the interval between.  After rezoning, an industry requires a building permit.  Once this is issued the company must decide to build.  The nature of the industry will probably determine whether or not waste matters will be discharged into the waters of the state.  Such matter may or may not contribute to pollution.  If so, it may be susceptible to treatment which would neutralize its harmful qualities.  All of these variables would make it extremely difficult for the Pollution Control Commission to sustain the burden of proof that an emergency exists by virtue of the enactment of an ordinance of rezoning alone.

            Our courts are not inclined to concern themselves with the wisdom of such an enactment.  InState ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, at pages 679-80, the court said:

            "It is a well-established general rule that courts will not by injunction interfere with the exercise of discretionary powers conferred by the state upon municipal corporations, acting through their duly appointed officers, merely because such action may be unwise, extravagant, or a mistake of judgment.  28 Am.Jur. 359, § 170."

            That the emergency mentioned in the above statute must be a genuine one is supported by the cases.  InKing County v. Port of Seattle, 37 Wn. (2d) 338, at page 345, the court said:

            "It is an established rule in this jurisdiction that it is incumbent upon one who seeks relief by temporary or permanent injunction to show a clear legal or equitable right and a well-grounded fear of immediate invasion of that right.  State ex rel. Hays v. Wilson, 17 Wn. (2d) 670, * * *"

            See alsoSenior Citizens League v. Department of Social Security, 38 Wn. (2d) 142.

             [[Orig. Op. Page 4]]

            There is an additional consideration which casts considerable doubt upon the authority of the Pollution Control Commission to seek an injunction against the enactment of a rezoning ordinance.  Before the board of county commissioners is authorized to enact such an ordinance, the county planning commission must recommend such a plan.  This recommendation must be made after public hearing upon due notice and publication pursuant to RCW 35.63.100.

            We have no reason to assume that there has been any failure to comply with the procedural requirements.  Although it appears that the appeals statute (RCW 36.32.330) is not available where the county commissioners act under a special statute for a special purpose, the cases indicate that the right of review is still available.  SeeState ex rel. Lyon v. Commissioners, 31 Wn. (2d) 366 and cases cited therein.

            Injunctive relief is not ordinarily granted where other legal recourse is available.

            2. The jurisdiction to enjoin a nuisance is vested in the superior courts of the state.  The commission may seek the aid of the courts to obtain injunctive relief in proper cases.  Whether or not an injunction will issue is largely a matter of proof.  InTurner v. Spokane, 39 Wn. (2d) 332, the court laid down the following rule at page 335:

            "* * * While it is true that a court of equity may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin, yet the court ought not to interfere where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized.  Annotation, 7 A.L.R. 749,et seq."

            3. Whether or not the Pollution Control Commission must seek injunctive relief in a given potential pollution situation appears to be a policy matter involving several considerations.  It is at once apparent that industrial pollution problems could be summarily solved by abolishing industry.  Some remedies are more obnoxious than the disease they are calculated to cure.  It would appear desirable to prescribe a more palatable remedy.  RCW 90.48.010 provides as follows:

             [[Orig. Op. Page 5]]

            "It is the public policy of the state to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state."

            We are not unmindful that our fish, game and recreational facilities are of tremendous significance to the economic welfare of our state.  The abundance of water for domestic, recreational, agricultural, industrial and power purposes is one of the state's greatest assets.  Its value depends in large measure upon its purity.

            Great strides have been made in recent years in the treatment of sewage and industrial wastes.  It would appear desirable to require industrial plants to install the most efficient type of sewage and industrial waste treatment plant to neutralize their tendency to pollute the waters of the state.  There is little to be gained in embarking on an ambitious fish rehabilitation program through hatcheries and fish ladders, if the waters they inhabit are too impure to permit survival.  The same observation pertains to parks and recreational facilities.  We cannot, in good conscience, advertise a "vacation wonderland" if, in fact, our beaches are closed as a health menace.

            The duty imposed upon the Pollution Control Commission in particular cases poses many practical problems.  It is authorized to require the use of all known available and reasonable methods, consistent with the public welfare and the industrial development of the state, to prevent and control pollution of the waters of the state.  It may not be consistent with the public welfare to prohibit the installation of new industrial plants on the ground of potential pollution.  On the other hand, it would seen unconscionable to permit unrestricted pollution by industry simply because of the payroll it provides.

            Enlightened industrial leaders are aware that they have a responsibility to maintain the purity of the state's waters.  New industries should be advised  [[Orig. Op. Page 6]] what is expected of them along the line of waste treatment facilities.  Old offenders should be required to conform.  Injunctive aid should be confined to cases where genuine emergencies exist.

            We hope these observations will prove to be of some assistance in defining the authority and responsibilities of your commission.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General

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