Annette Holding, LLC v. Northwest Clean Air Agency
36669-3
Wash. Ct. App.May 26, 2020Background
- Annette Holding, LLC (owned by Hanna Youssef) operates a Conway gas station under the trade name Super Duper Foods; the station was constructed and opened in 2013 without NWCAA approval.
- NWCAA discovered the unpermitted operation in Oct. 2014; after incomplete and delayed permit submissions, NWCAA issued two notices of violation listing the violator as “Super Duper Foods—Chevron 306936” and listing Annette Holding LLC as owner.
- NWCAA ordered installation of Stage 1 enhanced vapor recovery equipment; installation was delayed and testing passed only in Jan. and July 2016.
- NWCAA later issued notices of imposition of penalty (initially naming Super Duper Foods as violator and not Annette Holding) totaling several thousand dollars; penalties were appealed to the PCHB by Super Duper Foods/Annette Holding.
- The PCHB and the Okanogan County Superior Court upheld the penalties; on appeal Annette Holding argued NWCAA lacked authority because the NOVs were issued to a trade name (a nonentity) rather than the LLC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of NOVs served to trade name rather than LLC | NOVs invalid because they named "Super Duper Foods," a nonentity, not the legal person entitled to notice | Trade name is the business identity of the LLC; NOVs also identified Annette Holding as owner; notice to trade name is notice to the LLC | Court held NOVs were valid; trade name and LLC are legally identical for notice purposes; Annette Holding bound by NOVs |
| Liability of owner despite operator/lessee status | NWCAA could not penalize Annette Holding if another entity operated the facility | RCW 70.94.040 and authorities impose liability on owners/operators; owner may be strictly liable without proof of knowledge | Court confirmed owner liability; landowner can be held responsible for violations even if another entity operates the site |
| NWCAA's cure/reissuance of penalty notices and timing defenses | NWCAA could not cure an initial defect by reissuing penalties later; by reissuance Annette Holding was improperly penalized after compliance | Not necessary to resolve because initial NOVs already bound Annette Holding | Court declined to accept the argument as dispositive because initial NOVs were sufficient to bind Annette Holding |
Key Cases Cited
- Port of Seattle v. Pollution Control Hearings Board, 151 Wn.2d 568 (Wash. 2004) (standard of review for PCHB orders under the administrative procedures act)
- William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403 (Wash. Ct. App. 1996) (RCW 70.94.040 does not require proof of knowledge; causation suffices for penalties)
- Brotherhood State Bank of Spokane v. Chapman, 145 Wash. 214 (Wash. 1927) (trade/assumed names do not create a separate legal identity for corporate actors)
- Pound v. Airosol Co., 498 F.3d 1089 (10th Cir. 2007) (owners/operators subject to strict liability under the Clean Air Act)
- Pinkerton's, Inc. v. Superior Court, 49 Cal. App. 4th 1342 (Cal. Ct. App. 1996) (a fictitious business name does not create a separate legal entity)