Citizens To Stop The Sr 169 Asphalt Plant, App V. King Co., Lakeside Industries Inc., Resps

• Court: Court of Appeals of Washington
• Decided: May 28, 2024
• Docket: 85566-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITIZENS TO STOP THE SR 169 No. 85566-2-I ASPHALT PLANT, (Consolidated w/85567-1) Appellant, DIVISION ONE v. UNPUBLISHED OPINION KING COUNTY; LAKESIDE INDUSTRIES INC.,

Respondents.

FELDMAN, J. — This appeal stems from an asphalt plant construction project

(the Project) proposed by Lakeside Industries Inc. (Lakeside). The Project

includes both construction of an asphalt plant on property located adjacent to State

Road 169 in unincorporated King County and road improvements to support the

plant. Because the road improvements are less than 200 feet from the shoreline

of the Cedar River, the improvements triggered review under the Shoreline

Management Act (SMA). Lakeside therefore applied for a construction permit for

the asphalt plant, a substantial shoreline development permit (SSDP) for the road

improvements, and a combined mitigated determination of nonsignificance

(MDNS) for both—as required by the State Environmental Policy Act (SEPA).

Following public notice and comment, the King County Department of Local

Services (County) issued both permits and the combined MDNS. No. 85566-2-I (Consolidated w/85566-2-I)

Citizens to Stop the SR 169 Asphalt Plant (Citizens) opposes the Project.

To that end, it filed a petition for review appealing the SSDP and combined MDNS

to the Shoreline Hearings Board (Board) and a petition under the Land Use Petition

Act (LUPA petition) appealing the construction permit and combined MDNS to King

County Superior Court. The superior court stayed the LUPA petition pending the

Board’s Decision. After the Board issued its findings of fact, conclusions of law,

and order (the Board’s Decision) affirming the County’s decision to issue the SSDP

and combined MDNS, Citizens appealed the Decision to the superior court, which

consolidated the appeal with the LUPA petition and transferred the consolidated

appeal to this court.

We hold that the Board properly exercised “sole jurisdiction” under SEPA

when it upheld the County’s combined MDNS and therefore dismiss Citizens’

LUPA petition, which exclusively raises arguments under SEPA. We further hold

that Citizens has not met its burden under the Administrative Procedures Act (APA)

to demonstrate the invalidity of the Board’s Decision, including its order affirming

the County’s combined MDNS and SSDP. We affirm.

I

Lakeside is a family-owned business with approximately 700 employees

and 16 asphalt plants in Washington and Oregon. Lakeside proposed to relocate

its asphalt plant located in Covington, Washington to the property located at 18825

SE Renton-Maple Valley Road (SR 169) in unincorporated King County. Due to

the site’s location in relation to the Cedar River, the corresponding road

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improvements triggered review under the SMA and required an SSDP. 1 A

construction permit was also required for the asphalt plant itself. 2

Lakeside applied for the construction permit and SSDP on November 8,

2018. There being substantial interest in the Project, the County received and

reviewed over 300 public comments. On April 14, 2022, the County found that the

proposal “does not pose a probable significant adverse impact to the environment

provided the mitigation measures are applied as conditions of permit issuance.”

Accordingly, as required by SEPA, the County issued its threshold determination:

an MDNS for the two permits. As a condition of issuing the two permits, the

corresponding combined MDNS required Lakeside to take mitigating measures to

protect cultural resources, air quality, soil, noise, critical areas, and ground and

surface water.

After the County issued the two permits and combined MDNS for the

Project, Citizens filed two appeals. First, Citizens filed a petition for review

appealing the SSDP and combined MDNS to the Board. Second, Citizens filed a

LUPA petition appealing the construction permit and combined MDNS to King

1 The SSDP describes the permitted project to include: “The proposed development within shoreline jurisdiction will widen State Highway SR 169, and relocate the access to a proposed Asphalt Plant. The Highway improvements will specifically add a deceleration and acceleration lane to the State Highway SR 169, and will be made to Washington State Department of Transportation (WSDOT) standards. The existing Highway drainage ditch will be relocated, a utility pole will be relocated, a stop sign will be added, a guardrail will be added and landscaping will be added. The Highway drainage ditches will be vegetated to improve water quality. The drainage from the westerly Highway drainage ditch will be conveyed to a treatment and infiltration facility on the adjacent Lakeside property.” 2 The construction permit describes the permitted project to include: “Installation of hot mix asphalt

plant equipment with permanent structures. Equipment includes aggregate sorting drying and mixing equipment, air emissions control equipment, storage silos and petroleum storage tanks. Buildings include silo foundations, concrete secondary containment structure, covered aggregate storage bins, facility administration office, sound walls, and below grade stormwater detention vault.”

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County Superior Court. In Citizens’ petition for review, it argued that the County’s

decision to issue the SSDP violated the Shoreline Master Program (SMP) and the

SMA and that the MDNS violated SEPA, and it requested that the Board void the

SSDP on those bases. Similarly, Citizens’ LUPA petition alleged that the MDNS

was issued without sufficient information to evaluate certain environmental impacts

and that the court should therefore reverse the MDNS and void the building permit.

Citizens then moved to stay the proceedings in the superior court “pending

resolution of the matter involving the same legal issues and the same parties”

before the Board. After the superior court denied Citizens’ motion, the Board

directed the parties to brief the issue of whether the Board “should review evidence

pertaining to the entire MDNS or only the portions of the MDNS that cover activities

permitted in the” SSDP. After considering briefing of all parties, the Board decided

that to limit the review of the MDNS to evidence related to impacts solely to the

shoreline jurisdiction, even if that were possible, “would constitute impermissible

piecemealing of the project and fail to consider the cumulative impacts in

contravention” of the controlling “rules, statutes, and case law.” The Board

acknowledged, “This conclusion may result in presenting the same evidence

related to the plant’s alleged impacts before the Board and King County Superior

Court in the LUPA appeal.” It nevertheless concluded, “The Board maintains

comprehensive scope of review under SEPA.”

Following a 10-day hearing before the Board, the parties stipulated to a stay

of proceedings in superior court to await the Board’s Decision. The Board

thereafter issued its Decision affirming the County’s SSDP and combined MDNS.

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Citizens then filed a petition for review appealing the Decision to superior court,

and the parties filed a stipulated motion to consolidate the petition for review and

the LUPA petition and transfer the consolidated appeal for direct review by this

court. The superior court granted the stipulated motion.

II

Citizens challenges both the County’s decision issuing the combined MDNS

and the Board’s Decision affirming the MDNS. Our review of these arguments is

governed by two principal statutes. First, the APA governs this court’s review of

the Board’s Decision. Bellevue Farm Owners Ass’n v. Shorelines Hr’gs Bd., 100

Wn. App. 341, 362, 997 P.2d 380 (2000). Under the APA, we review the Board’s

Decision, not the decision of the local government or the superior court, limiting

our review to the record before the Board. May v. Robertson, 153 Wn. App. 57,

72-73, 218 P.3d 211 (2009). The burden of demonstrating the invalidity of an

agency action is on the party asserting invalidity. RCW 34.05.570(1)(a). A party

may challenge an agency decision on nine different bases, three of which are at

issue here: (1) erroneous interpretation or application of the law, (2) lack of

substantial evidence, and (3) the order is arbitrary or capricious. RCW

34.05.570(3)(d),(e),(i). While we accord deference to an agency interpretation of

the law where the agency has specialized expertise in dealing with such issues,

we are not bound by an agency’s interpretation of a statute. Pres. Our Islands v.

Shorelines Hr’gs Bd., 133 Wn. App. 503, 515, 137 P.3d 31 (2006).

Second, our review here is also governed by SEPA. The legislature

enacted SEPA in 1971, expressing the aim of injecting environmental awareness

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into governmental decision-making. Wild Fish Conservancy v. Wash. Dep’t of Fish

and Wildlife, 198 Wn.2d 846, 855, 502 P.3d 359 (2022). A threshold determination

is required for any proposal “which meets the definition of action and is not

categorically exempt.” WAC 197-11-310. “The lead agency shall prepare its

threshold determination . . . at the earliest possible point in the planning and

decision-making process, when the principal features of a proposal and its

environmental impacts can be reasonably identified.” WAC 197-11-055(2). The

responsible official shall review an environmental checklist when making its

threshold determination. WAC 197-11-315(1). All threshold determinations shall

be documented in a determination of significance (DS), a determination of

nonsignificance (DNS), or a mitigated determination of nonsignificance (MDNS).

WAC 197-11-310; WAC 197-11-350.

When making this threshold determination, the agency must determine

whether the proposal will have a probable, significant adverse impact on the

environment. WAC 197-11-330(5). A “significant” impact means a “reasonable

likelihood” exists that the proposal will have “more than a moderate adverse impact

on environmental quality.” WAC 197-11-794. The definition of "significant" also

states: "The severity of an impact should be weighed along with the likelihood of

its occurrence. An impact may be significant if its chance of occurrence is not great,

but the resulting environmental impact would be severe if it occurred." WAC 197-

11-794(2). "Several marginal impacts when considered together may result in a

significant adverse impact.” WAC 197-11-330(3)(c).

The threshold determination directly affects whether an Environmental

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Impact Statement (EIS) is required. “If the responsible official determines that a

proposal may have a probable significant adverse environmental impact, the

responsible official shall prepare and issue a [DS]” and an EIS is required. WAC

197-11-360. If the responsible official determines there will be no probable

significant adverse environmental impacts from a proposal, the lead agency shall

issue a DNS and no EIS is required. WAC 197-11-340. In the alternative, an

agency may issue a mitigated DNS, or MDNS, "when the proposal can be

conditioned to have no probable, significant adverse impacts by imposing specific

mitigation measures." Wild Fish Conservancy, 198 Wn.2d at 856 (citing WAC 197-

11-350). “The requirement of an EIS may be ‘superseded by the MDNS.’” Id. at

857 (quoting Anderson v. Pierce County, 86 Wn. App. 290, 305, 936 P.2d 432

(1997)).

Although this Court reviews the Board’s Decision and not that of the County

under the APA, we must also consider the County’s analysis because Citizens is

challenging the Board’s Decision affirming the County’s issuance of a combined

MDNS for both permits. The County’s decision to issue an MDNS and not require

an EIS is reviewed under the “clearly erroneous” standard of review. Id. at 866.

Similarly, in accordance with RCW 43.21C.090, “[a]n agency’s decision to issue a

MDNS and not to require an EIS must be accorded substantial weight.” Anderson

v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997) (citing RCW

43.21C.090; Indian Trail Prop. Owner’s Assoc. v. City of Spokane, 76 Wn. App.

430, 442, 886 P.2d 209 (1994)).

“For the MDNS to survive judicial scrutiny, the record must demonstrate that

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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 an MDNS was based on information sufficient to evaluate the proposal’s

environmental impact.” Moss v. City of Bellingham, 109 Wn. App. 6, 23, 31 P.3d

703 (2001). “We look beyond whether substantial evidence exists to support the

agency’s decision. Rather, we review the entire record and determine whether,

based on the entirety of the evidence, we are ‘left with the definite and firm

conviction that a mistake has been committed.’” Wild Fish Conservancy, 198

Wn.2d at 866 (quoting PT Air Watchers v. Dep’t of Ecology, 179 Wn.2d 919, 926,

319 P.3d 23 (2014)).

A

Citizens’ lead argument is that the County violated WAC 197-11-055(2),

which states that “[t]he lead agency shall prepare its threshold determination . . .

at the earliest possible point in the planning and decision-making process, when

the principal features of a proposal and its environmental impacts can be

reasonably identified.” Here, according to Citizens, the County “did not issue its

MDNS until . . . 3 ½ years after the permit applications were filed. This constituted

a violation of SEPA.”

While 3 ½ years is a substantial amount of time to issue an MDNS, it is not

inexplicable. As the County and Lakeside note, SEPA’s regulations anticipate a

process where an applicant can “revise the environmental checklist as may be

necessary to describe” clarifications or changes to a proposal. WAC 197-11-

350(2). The regulations further provide “if the lead agency specifies mitigation

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measures on an applicant’s proposal that would allow it to issue a DNS, and the

proposal is clarified, changed, or conditioned to include those measures, the lead

agency shall issue a DNS.” WAC 197-11-350(3). In appropriate cases, this

process can be time-consuming.

Because of these competing interests—issuing a threshold determination

“at the earliest possible point,” on the one hand, and examining appropriate

mitigation measures, on the other—it may be difficult to determine whether an

agency prepared its threshold determination “at the earliest possible point in the

planning and decision-making process, when the principal features of a proposal

and its environmental impacts can be reasonably identified.” WAC 197-11-055(2).

Nor is it clear what remedy a court can provide, ex post, when an advocate claims

that an agency unreasonably delayed its threshold determination. It makes little

sense, for example, to remand this matter to the agency to issue the MDNS more

expeditiously. Such a “remedy” would cause additional delay, which is contrary to

the plain language of WAC 197-11-055(2).

But we need not—and do not—answer these questions here because, as

the County and Lakeside correctly argue, Citizens abandoned this argument

before the Board and has therefore waived it. Although Citizens raised the timing

issue in its initial petition for review, it failed to include the issue in its proposed list

of legal issues to the Board. Nor was the issue included in the joint list of proposed

legal issues to the Board. Consequently, Citizens, Lakeside, and the County did

not address the issue in their opening and closing briefs, and the Board did not

address the issue in its Decision. Because Citizens failed to adequately raise this

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issue before the Board, it may not be raised on appeal. RCW 34.05.554(1)

(“Issues not raised before the agency may not be raised on appeal . . . .”). 3

B

Citizens next argues that the County did not adequately assess or mitigate

various environmental impacts before it issued the MDNS for the Project. We

disagree. After careful review of the administrative record and the concerns raised

by Citizens, we conclude that the County evaluated the relevant environmental

factors sufficiently to constitute prima facie compliance with SEPA with regard to

(1) toxic and hazardous substances, (2) impacts to fish and fish habitat, (3) impacts

to wildlife, (4) traffic impacts, (5) noise impacts, (6) recreational and aesthetic

impacts, and (7) land use impacts. Therefore, the County’s threshold

determination was not clearly erroneous as to these potential environmental

impacts, which necessarily informs our corresponding analysis of the Board’s

Decision. See part II.D below. 4

The administrative record shows that the County assessed and collected

sufficient information regarding the release or potential release of toxic and

3 Citizens argues that it raised the timing issue in its opening statement at the hearing before the

Board and in its closing brief. But those portions of the record do not support this assertion. While Citizens may have cited the regulation (WAC 197-11-055) where the “earliest possible point in the planning and decision-making process” language comes from, it never raised an argument asserting that the County’s issuance of the MDNS was not made at the “earliest possible point in the planning and decision-making process.” Citizens’ argument that the timing of the County’s issuance of the MDNS “created a three year long closed-door EIS process that excluded the public” is equally unpersuasive. The County received comments by mail, by e-mail, and at numerous public meetings, and both the County and Lakeside considered and responded to such comments. Contrary to Citizens’ argument, the record reflects a substantial opportunity for public participation throughout the decision-making process. 4 We address the County’s consideration of potential air impacts separately because, as discussed

in part II.C below, Citizens waived this issue by failing to raise it before the Board.

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hazardous materials. The County conditioned Lakeside’s Project on its completion

of an independent remedial action to clean up hazardous and toxic materials left

from historical industrial operations and spills that have occurred on the site. To

do this, Lakeside’s environmental consultant, Farallon Consulting Inc. (Farallon),

performed a subsurface investigation. To evaluate the groundwater and soil

contamination, Farallon installed 7 monitoring wells and 16 soil test pits. The

investigation identified “four localized areas of shallow petroleum hydrocarbon-

contaminated soil . . . exceeding [Model Toxics Control Act (MTCA)] . . . cleanup

levels.” The monitoring wells also showed that no contaminated groundwater is

leaving the site.

Further, Lakeside’s preapplication materialswhich were considered by

the Countyshowed Lakeside’s above ground storage tanks for hazardous

substances will be located on a concrete slab with primary and secondary

containment structures in compliance with King County codes. Eric Ferguson, a

hydrogeologist from King County’s Water and Land Resources Division, reviewed

Farallon’s reports and geotechnical documents as well as the Department of

Ecology’s documentation regarding Lakeside’s proposed independent remedial

action. Finally, the County imposed the following mitigation measures to address

the release or potential release of hazardous and toxic materials:

• All contaminated soils shall be removed from the site and the excavated site must be backfilled with clean soils.

• The applicant must identify the source(s) for all clean soil. All contaminated soil must be exported to a state approved site for deposit. ....

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• Plant manager shall keep the Spill Prevention & Response Plan updated and on the site for use during emergency. Staff shall be trained for implementation of the plan for any future emergency.

The record thus shows that the County’s decision to issue an MDNS was based

on sufficient information regarding the potential release of toxic and hazardous

materials.

Notwithstanding the above analysis, Citizens argues “[n]o one with

expertise in this topic reviewed the potential for toxic and hazardous material

releases and/or impacts that could be caused by such releases before the MDNS

was issued on behalf of the County.” The Board similarly acknowledged, “The

County did not have a MTCA expert review materials relating to contamination at

the site.” But as the Board correctly noted, County hydrogeologist Eric Ferguson

reviewed the potential impacts of the Project including Farallon Consulting’s

documents on remediation and groundwater contamination. In the report,

Farallon’s investigation of the site (which was reviewed by the County) determined

that no contaminated groundwater is leaving the site. All hazardous substances

will also be located on a concrete slab with primary and secondary containment

structures in compliance with King County codes. Finally, the MDNS included a

mitigation measure requiring Lakeside to keep a “Spill Prevention & Response

Plan” on site for use during an emergency and “Staff shall be trained for

implementation of the plan for any future emergency.”

Because our review of the record shows that the County’s decision to issue

an MDNS was based on information sufficient to evaluate the proposal's

environmental impact with regard to the release or potential release of hazardous

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substances, we reject Citizens’ contrary arguments regarding this potential

impact. 5

The administrative record also shows that the County collected and

assessed sufficient information regarding the Project’s impacts to fish and fish

habitat. Lakeside hired an environmental consultant, the Watershed Company, to

prepare a Critical Areas Report (CAR) as required by King County Codes. A CAR

documents a proposal’s impacts to streams, wetlands, and wildlife. Greg

Johnston, a fisheries biologist employed by the Watershed Company, provided

quality control on the CAR. Johnston made three separate visits to assess the

streams on site and the habitat they provided for fish. Johnston also prepared a

mitigation plan that included improvements to existing stream buffers on the

Project site which have been degraded by historical industrial use. The

improvements included “a native revegetation plan, soil preparation, planting

native plants, [and] removing any non-native species . . . .” Johnson noted the

benefits of these improvements would include the introduction of “terrestrial insects

. . . that would provide food for fish.” Further, the revegetation would provide shade

along the stream to keep the water cool, which is necessary for salmon to survive.

Laura Casey, a senior professional wetland scientist employed by King

County, evaluated the CAR completed by the Watershed Company and concluded

5 Citizens argues that the County also erred when “it failed to comply with WAC 197-11-250(4),

which provides that, when a soil remedial action under MTCA is part of a development proposal, the procedures in WAC 197-11-256 through WAC 197-11-268 shall be used to combine the procedural requirements of SEPA and MTCA to the extent practicable.” Because Citizens did not make this argument below, we decline to address it. RCW 34.05.554(1) (“Issues not raised before the agency may not be raised on appeal . . . .”)

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that the Project will improve salmon habitat and the Cedar River. As part of her

review, Casey assessed Lakeside’s application materials relating to streams,

wetlands, and shorelines for the Project and also visited the site. And, as detailed

in the County’s MDNS, a stormwater filtration system will be installed where

“[r]unoff from all paved surfaces will be collected and discharged into the new

drainage and water quality treatment facility per the [King County Surface Water

Design Manual] standards for industrial sites.” The record thus shows that the

County’s decision to issue an MDNS was based on sufficient information regarding

the potential impacts to fish and fish habitat.

Notwithstanding the above analysis, Citizens argues that the County

“simply did not assess impacts to fish and fish habitat” because Lakeside falsely

reported in its SEPA checklist submitted to the County that there are no

“threatened or endangered species known to be on or near the site.” However, Ty

Peterson, the responsible SEPA official for the County, testified before the Board

that he did not rely solely on the SEPA checklist to identify threatened and

endangered species, but also relied on public comments that the County received

for the Project. A variety of fisheries and other advocacy groups submitted

comments identifying their concerns associated with potential impacts to

threatened and endangered salmon species. As a result, we reject this argument.

Next, Citizens argues that increased lighting on the site will likely result in

significant impacts to fish “because light, whether direct, indirect, or skyglow, [is]

known to significantly increase predation of fish and alter migration behavior.” But

the record shows that the County considered and assessed the impacts of light on

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fish and fish habitat in the MDNS: “All lights shall be shielded away from the onsite

wetland, stream and their buffers forming the wildlife corridor.” Accordingly, we

reject this argument.

Finally, Citizens argues that “the Project will involve storage and potential

release of fuel or pollutants on the site which is hydrologically connected to the

Cedar River.” But as discussed above, the County considered and assessed the

potential release of hazardous and toxic substances. Lakeside’s above ground

storage tanks will have primary and secondary containment structures, a

stormwater filtration system will collect all stormwater runoff from impervious

surfaces, and Lakeside will keep a “Spill Prevention & Response Plan” on site.

Because our review of the record shows that the County’s decision to issue

an MDNS was based on information sufficient to evaluate the proposal’s

environmental impact with regard to fish and fish habitat, we reject Citizens’

contrary arguments regarding this potential impact.

The administrative record shows that the County collected and assessed

sufficient information regarding the Project’s impacts to wildlife. Nell Lund is a

senior ecologist and professional wetland scientist at the Watershed Company

who assisted in drafting the CAR and aided in mitigation planning. To prepare the

report, Lund conducted field work delineating the boundaries of the wetland

features, categorizing the wetlands, and classifying the streams using the stream

classification criteria under the Washington Administrative Code. Within the report,

wildlife habitat networks (or wildlife habitat corridors) were evaluated and

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described as contiguous and 165 feet wide in compliance with King County codes.

Further, Lund visited the site five times and found no nest sites or priority habitats.

As mentioned above, the CAR was considered by County officials before issuing

the MDNS. The record thus shows that the County’s decision to issue an MDNS

was based on sufficient information regarding the Project’s potential impacts to

wildlife.

Citizens argues that “[t]here is no discussion anywhere about how the

Project will impact the wildlife’s use of the Wildlife Habitat Network.” But Citizens’

argument is not supported by the record. The CAR submitted to the County directly

discusses impacts to the wildlife habitat network. Further, as mentioned above,

the mitigation measures proposed by Lakeside will enhance buffer areas by

restoring vegetation and thereby creating improved habitat for wildlife.

Because our review of the record shows that the County’s decision to issue

an MDNS was based on information sufficient to evaluate the proposal’s

environmental impact with regard to wildlife, we reject Citizens’ contrary arguments

regarding this potential impact.

The administrative record similarly shows that the County collected and

assessed the Project’s impacts to traffic. Lakeside’s consultant, Transportation

Engineering Northwest (TENW), conducted a level 1 Traffic Impact Analysis (TIA),

which is a standard requirement for any project in King County. The TIA “evaluated

level of service, sight distance, [and] crash history” for the site. TENW submitted

the TIA to King County and the Washington State Department of Transportation

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(WSDOT) and both agencies reviewed and prepared comments regarding the TIA.

Jeff Schramm is a transportation engineer and “principal and co-owner of

[TENW].” He was the “principal engineer and overall project manager for the entire

traffic analysis [and has] been involved [with] this project since 2017.” Schramm

testified before the Board that the increased traffic due to Lakeside’s asphalt plant

would be insignificant. He explained that Lakeside’s activities on the highway

would add 212 daily trips to a total of approximately 24,000 daily trucks and cars

already using the highway, resulting in an increase of less than one percent.

Schramm also explained that he expects to see “daily fluctuation in traffic by up to

five percent. So an impact of less than one percent would be within the daily

fluctuation of traffic . . . I would not consider that to be significant.” The record thus

shows that the County’s decision to issue an MDNS was based on sufficient

information regarding the Project’s potential impacts to traffic.

Citizens claims that the “[TIA]’s reliance on historical crash data for the site

is imprudent and not representative of the increased risk associated with the

proposed operations.” However, as part of its Project, Lakeside is adding a

deceleration and acceleration lane to the highway and is relocating and widening

the access road to improve highway operations and safety.

Because our review of the record shows that the County’s decision to issue

an MDNS was based on information sufficient to evaluate the proposal’s

environmental impact with regard to traffic, we reject Citizens’ contrary arguments

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The administrative record also shows that the County collected and

assessed sufficient information regarding the Project’s noise impacts before

issuing the MDNS. Lakeside hired Landau Associates to conduct an

environmental noise assessment for the Project. The assessment included

coordinating sound level measurements, identifying the relevant noise regulations,

constructing and running noise models, analyzing and identifying various noise-

mitigation measures, and making a determination on significance of impacts. As

mentioned above, Lakeside plans to move its Covington plant (including the same

equipment) to the Project site. Part of Landau Associates’ assessment included

visiting Lakeside’s Covington asphalt plant to take noise measurements from the

equipment that will eventually be transferred to the Project site. The County hired

BRC Acoustics to review Landau Associates’ analysis.

The County’s SEPA official, Ty Peterson, considered the BRC Acoustics

report and noted that while the Project’s noise emissions at the north end of the

site (48 decibels) exceeded the applicable limit imposed by King County codes (47

decibels), it was not a significant impact under SEPA. Peterson explained that

because noise emissions from the highway which sits north of the site was

measured at 54 to 63 decibels and the highway noise is “far more consistent than

the noise [from Lakeside’s proposed] facility operations,” the modest noise

exceedance “is less concerning.”

Further, Kristen Wallace, Lakeside’s noise consultant at Landau

Associates, testified before the Board and described the noise modeling conducted

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for the Project as “conservative and will result in slightly higher noise levels than I

. . . really expect to be emitted by this facility.” Finally, the County imposed

mitigation measures to reduce the level of noise from the facility in the MDNS: “All

sound attenuation walls shall be constructed as proposed. Operational mitigation

measures referenced in Ramboll US Corporation Report dated June 4, 2020

including restricting use of RAP crushing during nighttime operation shall be

followed.” The record thus shows that the County’s decision to issue an MDNS

was based on sufficient information regarding potential noise impacts.

Citizens raises two arguments regarding this issue. First, Citizens argues

that Lakeside’s noise modeling did not analyze the hourly maximum noise

emissions (Lmax) as required by King County Codes and, as a result, the County’s

analysis of the Project’s noise impacts is insufficient. Wallace testified that there

is no requirement to model Lmax emissions. Further, she testified that another

noise measurement, the energy average sound level (Leq), “is the most difficult

noise limit to comply with,” and she would expect that if a mitigation measure could

reduce Leq to a compliant level, Lmax levels would be “within the compliance limits

as well.” Second, Citizens argues that “even with the excessively high noise walls

of unverified performance, the Project will still exceed noise limits.” But as

discussed above, the County’s SEPA official deemed a one decibel exceedance

of the County’s noise limits as insignificant under SEPA because of the constant

background noise emitted by SR 169.

Because our review of the record shows that the County’s decision to issue

a MDNS was based on information sufficient to evaluate the proposal’s

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environmental impact with regard to noise, we reject Citizens’ contrary arguments

The administrative record similarly shows that the County collected and

assessed sufficient information with regard to the Project’s recreational and

aesthetic impacts. The Project sits on a property that is currently vacant and totals

approximately 25 acres. Of the 25 acres, 11.3 will either be developed or be

established as a critical buffer area. The existing highway (SR 169) north of the

facility separates the proposed asphalt plant from the Cedar River Trail. The

Project will not impede public access to the Cedar River Trail or the Cedar River.

Further, the site itself does not provide for any recreational activities. Finally, no

one’s view in the immediate vicinity will be obstructed. The record thus shows that

the County’s decision to issue an MDNS was based on sufficient information

regarding potential recreational and aesthetic impacts.

Citizens argues “[t]he Asphalt Plant will be in the direct view of users of the

Cedar River Trail, which runs along the shoreline area and is used and enjoyed

heavily by members of the public. It will significantly and adversely impact what is

currently scenic wilderness-like panorama by marring it with an industrial facility.”

But as the Board noted, “[t]he aesthetics of building an asphalt plant on a

historically industrial site with tree buffers between the plant and the residential

neighborhood is not a significant adverse impact.”

Because our review of the record shows that the County’s decision to issue

an MDNS was based on information sufficient to evaluate the proposal’s

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environmental impact with regard to recreational and aesthetic interests, we reject

Citizens’ contrary arguments regarding this potential impact.

The administrative record likewise shows that the County evaluated the

Project’s land use impacts before issuing the MDNS. In considering the Project’s

potential land use impacts, the County considered the site’s land use designation

under the County’s comprehensive plan, its zoning designation, and the

development criteria for that particular zoning designation. The County’s land use

designation of the site is industrial and is consistent with the County’s

Comprehensive Plan. The SSDP described the portion of the site that is within the

shoreline’s jurisdiction as high intensity shoreline. The County also considered

numerous public comments that identified potential land use impacts associated

with Lakeside’s proposal.

Because our review of the record shows that the County’s decision to issue

a MDNS was based on information sufficient to evaluate the proposal’s land use

impacts, we reject Citizens’ contrary arguments regarding this potential impact.

C

In response to Citizens’ argument that the County failed to adequately

assess or mitigate the air quality impacts from Lakeside’s industrial operations at

the site, Lakeside and the County argue that Citizens waived this issue on appeal

by failing to raise it before the Board. Because Citizens withdrew this issue before

the Board, we agree with Lakeside and the County and conclude that Citizens has

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waived this issue on appeal. See RCW 34.05.554 (“Issues not raised before the

agency may not be raised on appeal . . . .”).

Citizens maintains that it may properly raise this argument on appeal

because it raised air quality impacts in its LUPA petition, which has been

consolidated with its petition for review. The County responds that we should

dismiss the consolidated LUPA petition because it only raises SEPA related

arguments as to which the Board exercised “sole jurisdiction.” The County is

correct. The Board’s “sole jurisdiction” over SEPA issues comes from SEPA itself:

In the case of an appeal under this chapter regarding a project or other matter that is also the subject of an appeal to the shorelines hearings board under chapter 90.58 RCW [SMA], the shorelines hearings board shall have sole jurisdiction over both the appeal under this section and the appeal under chapter 90.58 RCW, [and] shall consider them together . . . .

RCW 43.21C.075(7). As this provision plainly states, when a party appeals under

both SEPA and the SMA, SEPA requires that the Board have “sole jurisdiction”

over both appeals. Thus, we grant the County’s motion to dismiss the LUPA

appeal because it only raises arguments under SEPA where the Board correctly

exercised “sole jurisdiction.” It necessarily follows that Citizens lacks any proper

vehicle by which to raise its air quality argument in this appeal. As a result, we do

not address it here.

D

Turning specifically to the Board’s Decision affirming the County’s issuance

of a combined MDNS for both permits, Citizens challenges the Decision under

three provisions of the APA. First, citing RCW 34.05.570(3)(d), Citizens argues

that the Board “has erroneously interpreted or applied the law.” Citizens is

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incorrect. The Board’s Decision properly sets forth the applicable legal standard

to review SEPA threshold determinations and properly recounts the information

considered by the County in evaluating the Project’s environmental impacts.

Citizens has not established, nor is there any basis to conclude, that the Board

erroneously interpreted or applied the law in affirming the County’s MDNS.

Second, citing RCW 34.05.570(3)(e), Citizens argues that the Board’s

Decision “is not supported by evidence that is substantial when viewed in light of

the whole record before the court.” Again, we disagree. As an initial matter,

Citizens does not argue that any of the following findings of the Board are

unsupported by substantial evidence: 1-18, 20-44, 46-54, 56-118, 120-131, 135-

36, 138, 140, 142-43, 145-50, 152, 155, and 157-224. As a result, these findings

are verities on appeal. State v. Grocery Mfrs. Ass’n, 198 Wn.2d 888, 901, 502

P.3d 806 (2022) (“Since GMA did not challenge this finding, it is a verity on

appeal.”). Citizens also does not challenge conclusions of law 1-5, 7, 9-24, 27, 30,

31, 33, 36, 39-55, 60, 63-66, 69, 70, and 75-78. As a result, they are law of the

case. Matter of Marriage of Laidlaw, 2 Wn. App. 2d 381, 386, 409 P.3d 1184

(2018) (“[U]nchallenged conclusions of law become law of the case.”). And while

Citizens states in its briefing that it is challenging findings of fact 19, 45, 55, 119,

132-34, 137, 139, 141, 144, 151, 153-4, and 156 and conclusions of law 6, 8, 25-

26, 28-29, 32, 34-35, 37-38, 56, 57, 58, 61, 62, 67, 68, and 71-74, it does not

provide any argument that the challenged findings of fact are unsupported by

substantial evidence or that the findings of fact do not adequately support the

challenged conclusions of law. As a result, the assignments of error are waived.

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See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992) (an issue to which a party assigns error but does not argue is waived).

Substantial evidence under RCW 34.05.570(3)(e) is “a sufficient quantity of

evidence to persuade a fair-minded person of the truth or correctness of the order.”

City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 116 Wn. App. 48,

54, 65 P.3d 337 (2003). The Board’s Decision describes at length the mitigation

measures included in the MDNS, an assessment of the Project’s impact on wildlife,

a noise assessment, a traffic impact analysis, the property’s zoning designation,

and voluminous testimony of County officials and Lakeside’s environmental

consultants describing the potential environmental impacts—as well as the

possible environmental benefits—of the Project. We have carefully reviewed the

record alongside Citizens’ arguments and the County’s and Lakeside’s responses

and, as part II.B above shows, we conclude that the Board’s Decision affirming the

County’s issuance of a combined MDNS for both permits is “supported by evidence

that is substantial when viewed in light of the whole record before the court.” RCW

34.05.570(3)(e). Citizens’ contrary argument thus fails.

Lastly, citing RCW 34.05.570(3)(i), Citizens argues that the Board’s

Decision is arbitrary and capricious. Agencies act in an arbitrary or capricious

manner when their action is “willful and unreasoning and taken without regard to

the attending facts or circumstances.” Hillis v. Dep’t of Ecology, 131 Wn.2d 373,

383, 932 P.2d 139 (1997). “Where there is room for two opinions, and the agency

acted honestly and upon due consideration, this court should not find that an action

was arbitrary and capricious, even though this court may have reached the

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opposite conclusion.” Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d

568, 589, 90 P.3d 659 (2004). Because the Board considered the “attending facts

and circumstances” and its Decision is not “willful and unreasoning,” we reject

Citizens’ argument that the Decision is arbitrary or capricious under RCW

34.05.570(3)(i).

III

We now turn to Citizens’ arguments under the SMA. Citizens asserts two

such arguments. First, Citizens argues “The Project is not compatible with and will

degrade the existing rural character of the area” and violates King County

Comprehensive Plan Policy S-507. That policy states: “King County shall require

that the scale and intensity of new uses and development within the High Intensity

Environment is compatible with, and protects or enhances, the existing character

of the area.” The administrative record shows that the site has been used for

industrial purposes for nearly a century. Although nearby development is zoned

rural, there is commercial and industrial development further to the east and west

along SR 169. The asphalt plant will take up less than half of the 25-acre parcel

and leave the remainder forested as it is currently. And as conditioned in the

County’s MDNS, over four acres of the site will be revegetated. The County

appropriately considered this evidence in issuing the SSDP.

We similarly affirm the Board’s Decision on this issue. The Board’s Decision

describes the nearby industrial development along SR 169 and notes that most of

the site will remain forested. The Board describes this information in findings of

fact 51-56. Of these findings, Citizens only assigns error to finding of fact 55. And

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even then, it does not provide any argument that finding of fact 55 is unsupported

by substantial evidence. As a result, Citizens waived its challenge to finding of fact

55. See Cowiche Canyon Conservancy 118 Wn.2d at 809 (an issue to which a

party assigns error but does not argue is waived). The Board’s findings on this

issue are supported by substantial evidence, there is no basis to conclude that it

erroneously interpreted or applied the law in affirming the County’s SSDP, and its

Decision is not arbitrary or capricious.

Second, Citizens argues that the County has not ensured that the Project

will not cause a net loss of ecological function in contravention of KCC

21A.25.090(C), KCC 21A.25.080(c)(1), and King County Comprehensive Plan

Policy S-601. King County Code 21A.25.090(C) provides, “King County shall

ensure that uses and modifications within the shoreline jurisdiction do not cause a

net loss of shoreline ecological functions and comply with the sequencing

requirements under K.C.C. 21A.25.080.” King County Code 21A.25.080(C)(1)

provides, “Mitigation shall be designed to . . . [a]chieve no net loss of ecological

functions for each new development.” And King County Comprehensive Plan

Policy S-601 states, “King County shall ensure that new uses, development and

redevelopment within the shoreline jurisdiction do not cause a net loss of shoreline

ecological processes and functions.”

County witnesses testified before the Board that the mitigation measures

included in the MDNS would improve ecological functions on-site. Lakeside’s

environmental consultant Farallon determined that contaminated groundwater is

not migrating off the Project site. The above ground storage tanks containing toxic

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and hazardous substances will be located on a concrete slab with primary and

secondary containment structures in compliance with King County Codes. A spill

prevention and response plan will be developed for the site. Stormwater runoff

from all impervious areas of the asphalt plant will be collected and directed to the

new drainage facility constructed under applicable standards for industrial sites.

The County appropriately considered this information in issuing the SSDP.

We similarly affirm the Board’s Decision on this issue. The Board’s Decision

describes the mitigation measures included in the MDNS that would improve

ecological functions on-site. The Board considered this information in findings of

fact 60-66. Citizens did not challenge any of these findings and, as a result, they

are verities on appeal. Grocery Mfrs. Ass’n, 198 Wn.2d at 901 (“Since GMA did

not challenge this finding, it is a verity on appeal.”). The Board’s findings on this

issue are supported by substantial evidence, there is no basis to conclude that it

erroneously interpreted or applied the law in affirming the County’s SSDP, and its

Affirmed.

WE CONCUR:

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