42 September 16, 2026 No. 868
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
PACIFIC BIO PRODUCTS - WARRENTON, LLC,
fka Bio-Oregon Protein, Inc.,
Petitioner,
v.
OREGON ENVIRONMENTAL QUALITY COMMISSION,
Respondent.
Environmental Quality Commission
WQ/I-NWR-2022-031;
A186173
Argued and submitted August 13, 2026.
Misha Isaak argued the cause for petitioner. Also on the
briefs were Alex T. Van Rysselberghe, Nick Bottcher, and
Stoel Rives LLP.
Carson L. Whitehead, Assistant Attorney General,
argued the cause for respondent. Also on the brief were
Dan Rayfield, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
KAMINS, J.
Motion to clarify granted. Reversed and remanded for
development of technology-based effluent limitations consistent with the required case-by-case analysis; otherwise
affirmed.
Cite as 353 Or App 42 (2026) 43
44 Pacific Bio Products v. Environ. Quality Comm.
KAMINS, J.
Petitioner, Bio-Oregon Protein, Inc., seeks judicial
review of a final order following a contested case hearing of the Environmental Quality Commission (EQC) affirming a
Clean Water Act National Pollutant Discharge Elimination
System (NPDES) permit issued by the Oregon Department
of Environmental Quality (DEQ) to petitioner. Petitioner
raises three assignments of error related to the permit’s
technology-based effluent limitations (TBELs) and water
quality-based effluent limitations (WQBELs). We reverse
the final order on petitioner’s first assignment of error,
otherwise affirm, and remand to EQC. We also address
EQC’s motion for clarification regarding the scope of the
stay applied to the permit pending appeal.
Petitioner operates a facility at the mouth of the
Columbia River that processes fish carcasses, crab shells,
and shrimp shells into a fish meal with concentrated protein. The facility operates under a NPDES permit that
allows for the discharge of process wastewater into the
Columbia River. In 2012, petitioner submitted a renewal
application for its NPDES permit. After the review process and comment period, DEQ issued the permit imposing new limitations with an effective date of April 1, 2022. Petitioner filed a request for a contested case hearing to
challenge some of the effluent limitations. A contested case hearing was held, and a final order affirming the permit
was issued.
We review an agency’s legal conclusions for errors of
law and substantial reason. Hettle v. Construction Contractors Board, 260 Or App 135, 137, 316 P3d 344 (2013), rev den, 355 Or 380 (2014); Murphy v. Board of Parole, 241 Or App 177,
193, 250 P3d 13, rev den, 350 Or 571 (2011) (“Where there
is only one legally correct outcome, * * * our review of an
agency or court decision is one for errors of law.”). We review its factual determinations for substantial evidence. Hettle, 260 Or App at 137; ORS 183.482(8). “Substantial evidence
exists to support a finding of fact when the record, viewed
as a whole, would permit a reasonable person to make that
finding.” ORS 183.482(8)(c).
Cite as 353 Or App 42 (2026) 45
FIRST ASSIGNMENT OF ERROR
In petitioner’s first assignment of error, it contends
that EQC erred in affirming and adopting TBELs derived
from inapplicable fish meal processing effluent limitation
guidelines (ELGs) and developed without adequate caseby-case analysis. Under that assignment of error, petitioner makes three arguments: (1) that DEQ failed to conduct a
case-by-case analysis for petitioner’s fish processing; (2) that DEQ failed to consider appropriate and available technology in setting the TBELs because barging1 wastewater, the
main control technology, is impossible to implement; and (3) that in DEQ’s case-by-case analysis of petitioner’s shrimp
and crab shell processing, it failed to consider “unique factors relating to the applicant.”
Under the Clean Water Act, NPDES permit writers
consider the “best practicable control technology currently
available” (BPT) to set effluent limitations for point sources, referred to as TBELs. 33 USC § 1311. Federal regulations
provide that permit writers, like DEQ, may impose those
TBELs through three methods: (1) application of existing
EPA-promulgated effluent limitations, (2) on a case-by-case
basis “to the extent that EPA-promulgated effluent limitations are inapplicable,” or (3) through a combination of those two methods where EPA-promulgated ELGs only apply to
certain aspects of the discharger’s operation or to certain
pollutants. 40 CFR § 125.3(c).
Here, DEQ applied EPA-promulgated ELGs for
“fish meal processing” to the fish processing part of petitioner’s operation, after determining that they were applicable
to petitioner based on review of EPA’s development documents for the fish meal processing ELGs. 40 CFR § 408.152.
For petitioner’s shrimp and crab shell processing, DEQ conducted a case-by-case analysis.
Petitioner first argues that DEQ improperly applied
the fish meal processing ELGs to its fish processing and,
thus, failed to conduct a case-by-case analysis. At issue is whether, under the regulation, DEQ correctly applied the
1
“Barging” refers to barging the wastewater to sea or to another facility with a solubles plant.
46 Pacific Bio Products v. Environ. Quality Comm.
fish meal processing ELGs or was instead required to conduct a case-by-case analysis. “When construing a federal
regulation, we follow the methodology prescribed by federal
courts,” first looking to the plain meaning of the regulation. Klamath Tribute Center, LLC v. Mortuary and Cemetery Bd.,
291 Or App 195, 199, 419 P3d 787 (2018) (internal quotation
marks omitted). Only if the wording is ambiguous do we look
to administrative interpretation of the regulation. Id. at 200.
Whether a permit writer is required to impose
TBELs based on a case-by-case analysis depends on whether
“EPA-promulgated effluent limitations are inapplicable” to
the operation or pollutant. 40 CFR § 125.3(c). Here, if the
fish meal processing ELGs are inapplicable to petitioner’s
fish processing, DEQ was required to conduct a case-by-case
analysis of the fish processing.2
As addressed in the regulation, the fish meal processing ELGs “are applicable to discharges resulting from
the processing of menhaden on the Gulf and Atlantic Coasts
and the processing of anchovy on the West Coast into fish
meal, oil and solubles.” 40 CFR § 408.150. In addition, prior to listing the ELGs, the regulation specifies that “any menhaden or anchovy fish meal reduction facility” must meet
the limitations. 40 CFR § 408.152. Although EPA has promulgated ELGs for petitioner’s industry—fish meal processing—petitioner’s operation does not trigger applicability because it does not process menhaden or anchovy, and the
regulation unambiguously limits its applicability to those
fish. Thus, DEQ erred in not completing a case-by-case
analysis for petitioner’s fish processing operation.
DEQ contends, however, that it did not need to conduct a case-by-case analysis because it examined the differences between petitioner’s fish processing operation and
the menhaden and anchovy facilities evaluated by EPA in
developing the ELGs and determined that those differences
2
To the extent that the plain meaning of whether an ELG is “inapplicable” is ambiguous, EPA’s NPDES Permit Writers’ Manual clarifies that EPApromulgated ELGs are inapplicable “[w]hen effluent guidelines are available for the industry category but are not applicable to the NPDES permit applicant (e.g., facilities that do not perform the industrial operation triggering applicability of the effluent guidelines * * *.” EPA NPDES Permit Writers’ Manual 5-45 (2010). Such is the situation here.
Cite as 353 Or App 42 (2026) 47
were insignificant to the concentration and type of pollutants in the effluent. Although there may be some duplication of EPA’s work, DEQ still must conduct the required caseby-case analysis, even if nothing precludes it from incorporating EPA’s data into that analysis. DEQ also argues
that EPA’s development documents indicate that the fish
meal processing ELGs were not limited to menhaden and
anchovy facilities but instead were focused on the process
itself. As discussed above, the plain language of the regulation addressing applicability of the fish meal processing
ELGs limits its application to “the processing of menhaden on the Gulf and Atlantic Coasts and the processing of
anchovy on the West Coast.” 40 CFR § 408.150. Because
that plain meaning is unambiguous, we cannot consider the
development documents. Klamath Tribute Center, 291 Or
App at 199-200.
Petitioner’s second and third arguments under
its first assignment of error address DEQ’s case-by-case
analysis of its shrimp and crab shell processing.
In conducting a case-by-case analysis, a permit
writer must “apply the appropriate factors listed in § 125.3(d) and shall consider: (i) the appropriate technology for the category or class of point sources of which the applicant is a
member, based upon all available information; and (ii) any
unique factors relating to the applicant.” 40 CFR § 125.3(c) (2).
As relevant here, § 125.3(d) requires the permit
writer to consider the BPT factors:
• “The total cost of application of technology in relation to
the effluent reduction benefits to be achieved from such
application;
• “The age of equipment and facilities involved;
• “The process employed;
• “The engineering aspects of the application of various
types of control techniques;
• “Process changes; and
• “Non-water quality environmental impact (including
energy requirements).”
48 Pacific Bio Products v. Environ. Quality Comm.
40 CFR § 125.3(d)(1). In other words, in conducting the
case-by-case analysis of petitioner’s shrimp and crab shell
processing, DEQ was required to apply those factors in
considering the appropriate technology for petitioner’s category of sources—shrimp and crab shell processing—and
any unique factors relating to petitioner. Petitioner argues: (1) that DEQ did not correctly identify an appropriate best
practicable control technology currently available as a basis for its TBELs and (2) that DEQ did not consider “unique factors relating to the applicant” in its consideration of several of the BPT factors contained in 40 CFR § 125.3(d)(1).
Addressing the first argument, in determining the
appropriate BPT, DEQ reviewed EPA’s analysis of several
control technologies for several types of fish processing facilities. EPA’s analysis determined that the best practicable
technologies for fish meal processing facilities were “good
housekeeping,” for facilities with a solubles unit,3 and “barging,” for facilities without a solubles unit. “Good housekeeping” requires “educating the plant personnel to use good
water conservation and solids handling practices.” “Barging” requires the facility to barge wastewater “to sea, or preferably to another fish meal operation with [a] solubles plant for by-product recovery.” In its review, DEQ interpreted EPA’s
data to conclude that “good housekeeping” would result in
a significant reduction in relevant pollutants for petitioner. However, in EPA’s analysis, facilities without a solubles
unit—like petitioner’s—only saw a small reduction with
good housekeeping, instead requiring barging out to sea or
barging or trucking to a facility with a solubles unit to adequately reduce pollutants to meet the fish meal processing
ELGs. Therefore, DEQ’s application of good housekeeping as
a best practicable technology is not supported by substantial evidence. To the extent DEQ’s analysis focuses only on good
housekeeping rather than barging, without consideration of
unique factors relating to barging, the TBELs are not supported by substantial reason. Because petitioner does not
have a solubles unit, EPA’s analysis renders barging the
only available BPT.
3
A solubles unit refers to equipment used to remove solids from the wastewater of the fish meal processing facility.
Cite as 353 Or App 42 (2026) 49
As to the second argument, petitioner contends that
DEQ failed to consider “unique factors relating to the applicant,” as required by 40 CFR § 125.3(c)(2) in conducting the case-by-case analysis. Petitioner argues that DEQ borrowed
EPA’s 1970s analysis from menhaden and anchovy fish
meal processing rather than conducting a true case-by-case
analysis as to several factors: “total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” “engineering aspects of the application of various types of control techniques,” “process changes,” and “non-water quality environmental impact.”
As to the first factor—“total cost of application of
technology in relation to the effluent reduction benefits to be achieved from such application,” DEQ focused its initial economic analysis on good housekeeping. As discussed above,
the application of good housekeeping as a BPT in petitioner’s case is not supported by substantial reason. As to barging, DEQ did not consider the cost of barging in relation to any unique factors relevant to petitioner’s facility. Further, while EQC considered the cost of alternate methods of reducing relevant pollutants, including barging, in the final order that analysis too did not include “unique factors” influencing the cost of applying those technologies to petitioner’s facility.
As to the second factor petitioner identifies—“non-water quality environmental impact”—DEQ
similarly centered on good housekeeping. Thus, despite
considering unique factors for good housekeeping, it again
failed to consider unique factors related to barging as the
correct applicable control technology based on DEQ’s review
of EPA’s data.
Finally, as to the final two factors identified by petitioner—“engineering aspects” and “process changes,” DEQ
considered barging as well as good housekeeping practices.
In that consideration of barging, DEQ’s analysis indicated
that it considered petitioner’s unique characteristics, determining that “the engineering aspects of applying the control techniques do[ ] not constitute an undue burden on the
permittee” and that, in implementing good housekeeping
and barging, “the process changes to [petitioner] will be
minimal.” Thus, because DEQ properly considered unique
50 Pacific Bio Products v. Environ. Quality Comm.
characteristics related to barging as to those two factors,
EQC did not err as to those factors.
Ultimately, because DEQ failed to consider characteristics unique to petitioner for some of the BPT factors as to the BPT supported by DEQ’s analysis (barging), the
TBELs for petitioner’s shrimp and crab shell processing are
not supported by substantial reason.
SECOND ASSIGNMENT OF ERROR
In its second assignment of error, petitioner argues
that EQC erred in affirming and adopting the final order
issued by an administrative law judge (ALJ) who did not
preside over the contested case hearing. Petitioner contends that the same ALJ that conducted the contested
case proceeding should have issued the order and that
petitioner did not have adequate notice of the appointment
of a new ALJ. Thus, according to petitioner, the appointment impaired the fairness of the proceedings. See ORS
183.482(7) (requiring that we remand for further agency
action if the fairness of the proceedings may have been
impaired by a material error in procedure or a failure to
follow prescribed procedures).
Contrary to petitioner’s argument, there is no
requirement for the same ALJ to conduct the contested case
proceeding and issue the final order. Petitioner points to the use of a definite article (“the”) preceding “ALJ” in statutes describing the contested case process. See, e.g., ORS 183.650 (“In any contested case hearing conducted by an [ALJ]
assigned from the Office of Administrative Hearings, the
[ALJ] shall prepare and serve on the agency and all parties
to the hearing a form of order, including recommended findings of fact and conclusions of law. The [ALJ] shall also prepare and serve a proposed order * * *.” (Emphases added.)).
As petitioner contends, use of the definite article “the” “indicates that the legislature was referring to a specific, previously mentioned” subject. Carroll and Murphy, 186 Or App
59, 68, 61 P3d 964 (2003). However, it does not follow that
referring to the same subject while explaining the process
limits the ability of the Office of Administrative Hearings to assign a new ALJ during the process.
Cite as 353 Or App 42 (2026) 51
Petitioner next argues that it lacked adequate
notice of the appointment of the new ALJ. Petitioner contends that the lack of notice deprived it of the opportunity to request a newly assigned ALJ as it was entitled. OAR 471-060-0005(3) (“Every party and agency in a contested case is
entitled to request a change of administrative law judge.”)
Because petitioner only received notice of the change in ALJ after the final order had been issued, petitioner contends it did not have an opportunity to meaningfully request a new
ALJ. DEQ contends that petitioner could have still requested a change in ALJ upon notice of the appointment, as a party
has 10 days from when the party “has actual notice of the
assignment” to request a new ALJ. OAR 471-060-0005(4)(b).
A party may request a new ALJ, and that request
will be automatically granted so long as it is filed within 10 business days after the ALJ is assigned to the case. OAR
471-060-0005(4). The 10-day deadline may be extended by
excusable mistake or surprise, in which case the party then
has 10 business days “after the circumstances that prevented a timely filing have come to an end.” OAR 471-060-0005(4)
(b). Under OAR 471-060-0005(2)(a), an ALJ is “ ‘assigned to
the case’ when a written notice is sent to a party or agency naming the administrative law judge to preside over a contested case, or the date a party or agency has actual notice of the assignment, whichever is earlier.”
Here, petitioner had actual notice and written notice
upon issuance of the final order. Had petitioner raised the
issue within 10 days of that notice, EQC may have granted
the request and reassigned a new ALJ to issue a new final
order. Because petitioner was not denied that opportunity,
the lack of earlier notice was not a material error that may have impacted the fairness of the proceedings. Cf. Pulito
v. Board of Nursing, 366 Or 612, 627, 468 P3d 401 (2020)
(denial of request for new ALJ based on procedural error
stemming from the application of an invalid rule may have
impaired the fairness of the proceeding).
THIRD ASSIGNMENT OF ERROR
In its third assignment of error, petitioner contends that EQC erred in affirming the WQBELs for heavy
52 Pacific Bio Products v. Environ. Quality Comm.
metals, thermal load, and enterococcus bacteria contained
in the permit. In petitioner’s brief, it summarily references its arguments during the contested case hearing. See JGB
Enterprises, LLC v. OLCC, 325 Or App 326, 340, 529 P3d
262 (2023) (rejecting minimally developed arguments incorporating argument below by reference). Because petitioner
has not sufficiently developed that argument in its brief
on appeal, we do not address it. See Johnson v. Mullen, 331
Or App 112, 118, 545 P3d 1261, rev den, 372 Or 361 (2024)
(rejecting an argument that was raised but not sufficiently
developed in the appellant’s brief); see also Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2,
64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 269 (2003) (rejecting a party’s “conclusory” argument because it is not “our proper function to make or develop a
party’s argument when that party has not endeavored to do
so itself”).
MOTION TO CLARIFY STAY PENDING APPEAL
Finally, we address DEQ’s motion to clarify the
scope of the stay of the final order pending appeal. During
the contested case proceeding, uncontested conditions of the NPDES permit went into effect. Following the contested
case hearing and proposed order, EQC issued a final order
and allowed the full NPDES permit with contested conditions to go into effect. Petitioner appealed seeking judicial review and filed a motion to stay the permit and final order pending our review. The Appellate Commissioner granted
that motion, determining that “[t]he mere fact that, if a
stay is granted, the limits set forth in the permit will not be enforced, does not show substantial public harm” and concluding “the EQC’s final order is stayed pending completion
of judicial review.” Stay Order 4-5.
Because the scope of the stay will determine
whether or not petitioner has violated uncontested terms
of the permit, we consider DEQ’s motion to clarify despite
reversing the final order. Prior to EQC’s final order, during the contested case hearing, uncontested conditions of the
permit remained in effect. See OAR 340-045-0035(9)(b)
(during a contested case hearing for an existing facility,
“only the contested permit condition and the conditions that Cite as 353 Or App 42 (2026) 53
cannot be implemented separately from the contested conditions are stayed until the hearing process is complete”).
Petitioner contends that, because the final order adopted the permit in full, “the Court’s stay of the Final Order stayed
all limits in the Permit.” However, the final order only
addressed the limits at issue in the contested case hearing. As acknowledged by petitioner in its request for a contested case hearing, “[p]ermit conditions to which [petitioner] has not objected will take effect April 1, 2022.” Petitioner set the scope of those challenged conditions in its initial request for a contested case hearing. The final order only resolved the
conditions that petitioner objected to, and therefore, those conditions were stayed by the stay of the final order. To the extent petitioner contends that the uncertainty of complying with uncontested limits places an unmanageable burden, it
had the opportunity to raise that argument in that initial
request. Instead, petitioner quoted OAR 340-015-0035(9)(b),
staying “conditions that cannot be implemented separately
from the contested conditions,” and stated it understood
unobjected-to conditions would take effect April 1, 2022. At that point, petitioner set the scope of its challenges to the permit and therefore, the scope of its appeal, and accordingly, the reach of any stay order. We see no reason why the stay on appeal would be broader than the scope of the underlying proceeding.
Motion to clarify granted. Reversed and remanded
for development of technology-based effluent limitations
consistent with the required case-by-case analysis; otherwise affirmed.