(concurring/dissenting) — The Mills in this case were entitled to the renewal of their NPDES permits because the Pollution Control Hearings Board (PCHB) properly granted partial summary judgment in their favor on the grounds that WAC 197-11-855(1) is reasonably consistent with the State Environmental Policy Act of 1971 (SEPA) as a matter of law. While this is the same end result as reached by the majority, I write separately because the majority addresses the wrong procedural question, and compounds its mistake by constructing an analysis of SEPA categorical exemptions that ignores the plain language of the statute and is inconsistent with our case law.
To begin, I would affirm the granting of the NPDES permits at issue based on the analysis of the only question which is properly before us procedurally, i.e., did the PCHB err in granting partial summary judgment in favor of the Mills on the SEPA issue? Both the majority and the Superior Court ignore this issue in their rush to discuss the general issue of SEPA categorical exemptions. The majority compounds this mistake by propounding an anal*366ysis of "as applied challenges” to SEPA categorical exemptions that fails to account for the plain language of SEPA and is directly contradictory to our unanimous 1992 decision in Dioxin/ Organochlorine Ctr. v. Department of Ecology, 119 Wn.2d 761, 837 P.2d 1007 (1992) (Dioxin I).5
The PCHB’s Summary Judgment Order
The majority goes awry by failing to identify the proper issue before the court. While the majority correctly identifies the standard of review in this case as de novo, it applies that standard to the wrong question. Majority at 352. The majority frames the question before us as review of the Superior Court’s interpretation of SEPA. Majority at 352. However, in this case the Superior Court was acting as an appellate court and reviewing the PCHB’s partial summary judgment order. Thus, while we may wish to agree or disagree with the Superior Court’s analysis, the ultimate issue before us for review is whether the PCHB erred in granting partial summary judgment for the Mills on the grounds WAC 197-11-855(1) is reasonably consistent with SEPA as a matter of law.
In order for Dioxin to prevail on their SEPA claim, Dioxin bears the burden of proof and must overcome the presumption that WAC 197-11-855(1) is reasonably consistent with SEPA as a matter of law. See Weyerhaeuser Co. *367v. Department of Ecology, 86 Wn.2d 310, 314, 545 P.2d 5 (1976). The PCHB held as a matter of law that the Department of Ecology (Ecology) had complied with SEPA (in not requiring an EIS or determination of significance) because the administrative categorical exemption of NPDES permit renewal at WAC 197-11-855(1) was reasonably consistent with SEPA, and based on the statutory exemption in the federal Clean Water Act. 33 U.S.C. § 1371. The exemption at 33 U.S.C. § 1371(c)(1) exempts NPDES permit renewals from review under the National Environmental Policy Act (NEPA). See Partial Summ. J., PCHB Nos. 91-140, et al. at 19 (May 15, 1992) (hereinafter "Order”); Br. of Resp’t Pollution Control Hr’gs Board at 19. Thus, the PCHB accorded WAC 197-11-855(1) the same deference as a SEPA statutory exemption. Order at 19-20.
I agree with the analysis and result reached by the PCHB. In essence, the categorical exemption for NPDES permit renewals exists to prevent redundant and unnecessary review under SEPA because of the overlapping regulatory requirements of RCW 90.48 (water pollution control act) and the federal Clean Water Act. Under RCW 90.48, Ecology is required to ensure NPDES permits do not result in significant environmental impacts. See WAC 173-201A-040(1); WAC 173-201A-070(1). If Ecology fails to so ensure, then it has failed to ensure compliance with state water quality standards and the permit is also illegal under the federal Clean Water Act. 33 U.S.C. § 1311 (b)(1)(C). Thus, any NPDES permit potentially triggering SEPA (i.e., a major action having significant environmental impact) would also violate RCW 90.48 and the Clean Water Act. As a matter of law, only illegal permits would be subject to SEPA review. WAC 197-11-855(1) merely exempts from SEPA those permits already in compliance with RCW 90.48 and the Clean Water Act; therefore, as a matter of law those permits are not likely to result in significant environmental impacts.
Dioxin had the opportunity to raise its concerns with the effluent discharge levels authorized in the permits by *368challenging the content of the NPDES permits before the PCHB. Dioxin elected not to challenge the content of the permits, instead, challenging only the procedure employed by Ecology and the validity of WAC 197-11-855(1).
Requiring redundant SEPA review of NPDES permit renewals is inconsistent with state and federal law. In enacting the Clean Water Act’s exemption to NEPA for NPDES permit renewals (33 U.S.C. § 1371(c)(1)), Congress recognized NEPA analysis would be duplicative of the analysis the Environmental Protection Agency (EPA) is required to perform under the Clean Water Act. Congress adopted this exemption in order to prevent unnecessary delays and burdens in implementing the NPDES permit program. This same rationale applies to the NPDES permit renewal by Ecology: duplicative review under SEPA will result in an unnecessary waste of state and private resources, and undesirable delays.
Given Congress’ determination that the issuance of NP-DES permits is not a major action significantly affecting the environment (a determination Washington’s Legislature has since- concurred in), and given the numerous environmental factors Ecology must consider in issuing NPDES permits, the PCHB properly concluded WAC 197--11-855(1) is reasonably consistent with SEPA as a matter of law. Contrary to the majority’s procedural characterization of our decision in Dioxin I, Dioxin has not challenged WAC 197-11-855(1) as overbroad, or alleged the permits fail to fit within the regulation. Therefore, the Superior Court erred in remanding the permits to the PCHB for a determination of whether the renewal of these permits constitutes a major action significantly affecting the environment.
Neither the majority in its opinion, nor the Superior Court in its opinion, takes the time to address the analysis used by the PCHB to clearly and concisely resolve the issue properly before it. Because I agree with the analysis and result of the PCHB, I would affirm its partial summary judgment order and decline the majority’s and Mill’s *369inappropriate invitation to address the issue of categorical exemptions in general under SEPA. The highly specialized context of waste discharge permits at issue here, which are regulated under both RCW 90.48 and the Clean Water Act, does not provide an ‘appropriate or helpful context for deciding the issue of "as applied” challenges to administrative categorical exemptions in SEPA.
"As Applied Challenges” to Administrative Categorical Exemptions in SEPA
Although I do not believe this issue should be decided in the context of this case, I address it in order to express my disagreement with the majority’s analysis. The majority holds any particular action, properly falling within an administrative categorical exemption, is exempt from SE-PA’s requirements and not subject to judicial review even though the particular action at issue may be properly characterized as a "major action significantly affecting the environment.” According to the majority, the only issues for which judicial review is available are (1) whether the categorical exemption is overbroad, and (2) whether a particular action properly falls within the categorical exemption. The majority’s holding is directly contradictory to the plain language of SEPA, and this court’s holdings in Dioxin I and Noel v. Cole, 98 Wn.2d 375, 655 P.2d 245 (1982).
To begin, SEPA requires environmental impact statements (EIS) for "major actions having a probable significant, adverse environmental impact.” RCW 43.21C.031(1). Additionally, SEPA gives Ecology the rulemaking authority to create categorical exemptions for government actions which are not major actions significantly affecting the quality of the environment. RCW 43.21C.110(l)(a). However, SEPA specifically states:
The types of actions included as categorical exemptions in the rules shall be limited to those types which are not major actions significantly affecting the quality of the environment. The rules shall provide for certain circumstances where ac*370tions which potentially are categorically exempt require environmental review.
RCW 43.21C.110(l)(a) (emphasis added).
The majority chooses, to ignore this plain language and our unanimous decision in Dioxin I by turning to legislative intent in the form of floor debates and bill reports in order to reach its conclusion that "as applied challenges” are not authorized by SEPA. Majority at 356-61. The majority’s use of this legislative intent is unpersuasive. The ambiguousness of this evidence of legislative intent is made apparent by both the Mills’ and Dioxin’s use of the same materials to reach opposite conclusions about the Legislature’s intent in enacting and amending SEPA. Without regard to these materials, the plain language of RCW 43.21C.110(l)(a) states that categorical exemptions are limited to actions which are not "major actions significantly affecting the environment.”
The majority and Mills fear this interpretation of categorical exemptions renders such exemptions meaningless. This fear is overstated. First, the majority and Mills fail to recognize the distinction between administrative and statutory categorical exemptions. As stated by a leading commentator:
By virtue of their source, statutory exemptions are limited only by their own terms and, conceivably, the constitutional equal protection requirement. Unlike administrative categorical exemptions, which are subject to the general qualification that they may not include "major actions significantly affecting the quality of the environment,” statutory exemptions immunize the specified activities from SEPA requirements regardless of their environmental significance.
Richard L. Settle, Washington State Environmental Policy Act: A Legal and Policy Analysis § 12, at 77-0 (1987) (footnotes omitted). Thus, statutory exemptions immunize the specified actions from SEPA review regardless of their potential environmental consequences.
On the other hand, administrative categorical exemp*371tions can be challenged on an "as applied” or case specific basis. In fact, such review is required. In Dioxin I, this court stated, "[o]ne need not define the entire universe of activities which might constitute major actions before deciding whether a particular activity constitutes a 'major action.’ ” Dioxin I, 119 Wn.2d at 774. We went on to hold the exclusive means of appealing these NPDES permits was at the PCHB. Dioxin I, 119 Wn.2d at 774. In other words, one may challenge and invalidate a particular action exempt under an administrative categorical exemption, without having to invalidate the entire categorical exemption. This rule is supported by previous statements of this court: "At the least, administratively created exemptions must be construed to apply only when the particular action in question is not a major action significantly affecting the environment.” Noel, 98 Wn.2d at 380 n.2. I am not persuaded by the majority’s analysis, based on ambiguous legislative materials and two Court of Appeals opinions, that this statement is no longer authoritative. In fact, in its resort to and reliance on legislative history, the majority completely ignores our holding in Dioxin I. In Dioxin I, the Dioxin Center stayed its challenge to the renewal of these exact permits at the PCHB in order to obtain a declaratory judgment on this SEPA issue. Dioxin I, 119 Wn.2d at 764-66. In dismissing its declaratory judgment action and request for injunctive relief we stated, "because Appellants are challenging specific permits, . . . jurisdiction for such appeals lies with the PCHB under RCW 43.21B.110(l)(c). Appeal to the PCHB is the exclusive means for challenging issuance of permits.” Dioxin I, 119 Wn.2d at 771 (footnotes omitted).
My analysis of categorical exemptions, which recognizes the distinction between statutory and administrative exemptions, is in accord with our prior cases and makes common sense. This analysis allows Ecology and businesses to rely on administrative categorical exemptions in not requiring threshold determinations of significance or EISs. Such a procedure results in the administrative efficiency and cost-effectiveness sought by the Legislature. *372However, when a third party wishes to challenge a specific action, otherwise exempt under an administrative categorical exemption, such a challenge is allowed with the challenger bearing the burden of proving the specific action is a "major action.” That burden is not merely one of production, i.e., alleging a given action constitutes a major action; rather, the challenger bears the burden, with its attendant costs and risks, of proving the proposed action constitutes a major action. Such a burden is not insubstantial and the majority’s fears regarding the potential number of this type of challenge are overstated. This analysis allows Ecology and businesses to continue to rely on the exemption in most instances.
Under the majority’s analysis, the only challenge would be to invalidate the exemption in totality. Thus, if the challenger prevailed, the entire exemption would be lost. But upon what showing is an administrative exemption to be invalidated?—upon a showing that among the universe of actions to which it applies there exists one "major action?”—two "major actions?” Ecology could not possibly define every administrative categorical exemption to exclude every potential "major action.” Nor should this court impose such a burden upon Ecology. Allowing "as applied” challenges is a common sense recognition of the fact that "major actions” will at times creep into administrative categorical exemptions. When they do, properly interested and concerned parties should be allowed to challenge them individually. If the exemption is of such importance that the type of action should never face potential SEPA review, then the Legislature may authorize an absolute exemption statutorily, as it did in this case. The majority’s analysis, however, results in an extreme position, unworkable both in theory and practice.
Conclusion
The majority addresses the wrong procedural question, and, in doing so, compounds its mistake by constructing an analysis for all categorical exemptions that ignores the *373plain language of SEPA and is inconsistent with Dioxin I and this court’s previous decisions.
Smith, Guy, and Talmadge, JJ., concur with Johnson, J.
As a threshold matter, I would dismiss this appeal as moot instead of addressing any of the substantive issues. All of the parties and the majority agree the issue of renewal of the NPDES permits in this case is moot because the NP-DES permits at issue have long since expired and, in 1996, the Legislature codified the administratively created categorical exemption for renewal of NPDES permits, thus making such renewals exempt from SEPA by statute. Laws of 1996, ch. 322, § 1 (codifying WAC 197-11-855(1)). While I agree the ultimate issue resolved by the majority is of continuing and substantial public interest, I do not agree that this case provides the proper context for resolving that issue for two reasons. First, this case has been briefed within the highly specific and specialized context of the categorical exemption for the renewal of NPDES permits in WAC 197-11-855(1). As stated in the first section of my dissent, the rationales upon which this exemption is based are highly specific and not easily generalized to any other administratively created categorical exemption. Second, the only question properly before us is the PCHB’s partial summary judgment decision. That decision does not purport to address the availability of “as applied challenges” to administrative categorical exemptions under SEPA.