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ZB4956 (8/30/85) SECTION 3 ATTORNEY GENERAL'S STATEMENTDAVEFROHNMAYER ATIORNEY GENERAL 

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### DEPARTMENTOF JUSTICE JusticeBuilding Salem.Oregon97310 Telephone:(503)378-4400 August 28, 1985 WILLIAMF. GARY DEPUTYATIORNEYGENERAL



# • To Whom It May Concern: This is to certify that Assistant Attorneys General Michael B. Huston and Paul A. Graham have the full authority of this office to execute the "Attorney General's Statement for Final Authorization" in support of the application of the State of Oregon for management of its hazardous waste program under the Federal Resource Conservation and Recovery Act, P.L. 94-580, as amended by P.L. 98-616. Mr. Huston is authorized to make necessary representations on behalf of the Oregon Environmental Quality Commission and the Oregon Department of Environmental Quality. Mr. Graham has similar authority with respect to the Oregon Public Utility Commissioner. Authority of my assistants to speak for me is confirmed by ORS 180.140(1).**~.~** v**vee~ry** truly,

# ~U DAVE FROHNMAYER

# r"r": Attorney General DF:bc cc: Gene Maudlin, Public Utility Commissioner Fred J. Hansen, Director, Department of Environmental Quality James R. Petersen, Chairman, Environmental Quality Commission Michael B. Huston, Assistant Attorney General Paul A. Graham, Assistant Attorney General

Subscribed and sworn to before me this day of August, 1985
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# • STATE OF OREGON County of Marion ) ) ss. )

Notary lv1y Co 

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• ATTORNEYGENERAL'S STATEMENT FOR FINAL AUTHORIZATION
I hereby certify, pursuant to my authority as Attorney General and in accordancewith Section3006(b) of the Resource Conservation and Recovery Act, as amended by the Hazardous and SolidWaste Amendments of 1984, (42 USC 6901, et seg,>. and 40 CFR 271, that inmy opinionthe laws ofthe state ofOregon provide adequate authority to carry out the program set forth in the "ProgramDescription" submittedjointly by the Oregon Environmental Quality Commission and the Department ofEnvironmental Quality. Thespecific authorities provided, Whichare containedin statutes or regulations lawfully adopted at the time this Statement is signed and which shall be fully effective bythe time the program is approved, include those identified below•

I cite ORS 459.455 as the underlying authority for the entire program.

In oertaininstances, more specific authority may also be cited.

I. IDENTIFICATION AND LISTING

A. State statutes and regulations define hazardouswaste so as to oontrol all hazardous waste oontrolled under40 CFR 261 as indicated in Checklist I-A.

Thebasio definitionofhazardous waste is found in ORS 459.410(6). Theuse ofthe term "residue" inORS 459.410(6)(b) can be oonstrued to cover all wastes, inclUding any disoarded material, that is not excluded by 40 CFR 261.4(a) or that is not ZB3289.1 -3.2-excluded by variance grantedunder40 CFR 260.30 and 260.31, that is abandoned, recycled or consideredinherently waste-like;, that
are intended to be covered by EPA's definition inRCRA 1004(27)
as the terms are used inRCRA and EPA regulations. Further, Oregon rules (340-100-010(2)(z» define residue equivalent to the meaningofsolidwaste in40 CFR 261.2.

Thelanguage "any process ofindustry, manUfacturing, trade or business or government or recovery ofnatural resources" is equiValent to the use ofthe terms "industrial, commercial, mining and agricultural operations and from communityactivities" inRCRA 1004(27).

B. State statutes and regulations containa list ofhazardous waste and characteristics for identifying hazardous wastewhich encompass all wastes controlledunder40 CFR 261 as indicatedin Checklist I-B and C.

Citation: ORS 459.410(6).

II. STANDARDS FORGENERATORS

State statutes and regulations provide coverage ofall the generators covered by 40 CFR 262 as indicatedin Checklist II.

Citation: ORS 459.445. 

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# • III. STANDARDS FOR TRANSPORTERS

State statutes and regulations provide coverage ofall the transporters covered by 40 CFR 263 as indicated inChecklist III.

TheDEQ and PUC have authority to regulate transportation ofhazardous wastewhich is also radioactive.

Citation: ORS 459.410(6), 459.440(5) and 756.040(2), 756.060, 761.415,767.457.

IV. STANDARDS FOR FACILITIES

A. State statutes and regulations provide permit standards for hazardous waste managementfacilities covered by 40 CFR 264 as indicated in Checklist IV-A.

Citation: ORS 459.440(1), 459.517, 459.590(2).

B. State statutes and regulations provide for interim status and include interim status standards for hazardous waste management facilities covered by 40 CFR 265 as indicatedinChecklist IV-B.

1. State statutes and regulations authorize owners and operators ofhazardouswaste managementfacilities which would qualify for interim status under the federal program to remain inoperationuntil a final decision is made on the permit application.

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### ZB3289.1 2. State law and regulations authorize continuedoperation ofhazardous waste management facilities provided that
owners and operators ofsuchfacilities complywith standards at least as stringent as EPA's interim status standards of40 CFR 265.

3. State law and regulations assure that any facility qualifying for state interim status continues to qUalify for federal interim status.
4. ORS 459.440 gives the Commission authority to adopt rules establishingminimumrequirements for the treatment, storage and disposal ofhazardous wastes, minimumrequirements for operation, maintenance, monitoring, reportingand supervisionoftreatment, storage and disposal sites, and requirements and procedures for selecting such sites. This is inaddition to and independent ofwhether or not a site is permitted and is to assure that minimummanagement standards are always applicable. This is necessary to deal with instances beyond a sites owner's control such as when the Department identifies a waste as hazardous but is unable to immediately issue a permit. It is a valid exercise of prosecutorial discretion.

5. Several facilities inOregon have been issued state permits' which are not RCRA permits, i.e., which are notjoint



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• EPA-DEQ permits. Such facilities are required to comply with the requirements of40 CFR Part 265, inaddition to the terms ofthe permit, pursuant to OAR 340-105-010(6)(b).

Citation: ORS 459.440.

V. REQUIREMENTS FOR PERMITS

State statutes and regulations provide requirements for permits as indicatedin Checklist V.

Asauthorized byORS 459.455, the DEQ or EQC may enter into an agreementwith EPA establishing certain procedural requirements as opposed to adopting specific rules. Such an agreement may limit the
use ofwaiver, variance, or exemptionauthorities so that no requirement less stringent than the comparable federal requirement is imposed. There is no conflicting statutewhich overrides ORS 459.455.

Citation: ORS 459.505 and 459.455.

VI. INSPECTIONS

State law provides authority for officers engaged in compliance evaluation activities to enter any conveyance, vehicle, facility or premises subject to regulationor inwhich records relevant to program operation are kept inorder to inspect, monitor, or otherwise

ZB3289.1 -3.6-investigate compliancewith the state program including compliance with permit terms and conditions and other program requirements.

Citation: ORS 133.525**~~** 459.285,468.095 and 756.075.



### VII. ENFORCEMENTREMEDIES

State statutes andregulations provide the following:

A. Authority to restrain immediately byorder or by suit in state court any person from engaging inany unauthorizedactivity which is endangeringor causingdamageto public health or the environment.

Citation: ORS 459.680 and 459.690.

B. Authority to sue in courts ofcompetentjurisdictionto enjoin any threatenedor continuingviolationofany program requirement, inclUding permit conditions, without the necessity ofa prior revocationofthe permit.

Citation: ORS 459.690 and 756.180.

C. Authority to assess or sue to recover in court civil penalties in at least the amount of $10,000 per day for any program violation.

Citation: ORS**459.995~2),** 761.415(3) and 767.457(3). 

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# • D. Authority to obtaincriminal penalties in at least the amount of $10,000 per day for each violation, and imprisonment for at least sixmonths against any personwho knowingly transports any hazardous waste to an unpermitted facility; who treats, stores,
or disposes ofhazardous wastewithout a permit; orwho makes any false statement or representation inany application, label, manifest, record,report, permit, or other document filed, maintained, or used for the purposes ofprogram compliance.

Citation: ORS 459.992(4), 761.994, and 767.993.


# • E. There is no state statute that might be construed to require that the burden ofproofunder state law in civil and criminal proceedings be greater than the burden ofproofor degree of knowledge or intent EPA must provide.



# • VIII. PUBLIC PARTICIPATION INTHE STATE ENFORCEMENT PROCESS

State laws and regulations provide for public participation in the state enforcement process byproviding assurances that the state agency or enforcement authority will:
(1) Investigate'and providewritten response to all citizen complaints duly SUbmitted;
(2) Notoppose intervention by any citizen in a state civil enforcement action brought in a courtwhere permissive interventionmay be authorized by statute, rule or regulation; and

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.-3.8-(3) Publish notice ofand provide at least 30days for public comment
on all proposed settlements ofstate civil enforcement actions brOUghtina court, except in cases where a settlement requires
someimmediate action (e.g., cleanup) which ifotherwise delayed could result in substantial damageto either public health or the environment.

This pertains towastes which are radioactive inaddition to beinghazardous wastes.
ThePublic Utility Commissioner regulates transportationby motor vehicle or rail/andhas authority to meet the above three requirements:
(1) ORS756.515(1) "Whenever the commissioner believes that any rate may be unreasonable or unjustly discriminatory, or that any service is unsafe or inadequate, or is not afforded, or that an investigationofany matter relating to any public utility, railroad, air carrier, motor carrier or other person should be made, or relating to any personto determine ifsuchpersonis subject to the commissioner's regulatoryjurisdiction, he may onhis ownmotion summarily investigate any suchmatter, with or without notice. ft

This statute gives the commissioner authority to investigate and providewritten responses to any citizen complaint. 

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ZB3289.1 (2) ORS 756.525 deals with intervention bycitizens inPUC proceedings. Since this statute includes all proceedings before the agency, it obviously deals with citizen intervention inmatters concerning the transportationof hazardous waste. The statute provides, inrelevant part, that:
"(1) Thecommissioner may permit any person to become a party who might, on the institutionofthe proceeding, have been such a party, if application therefor ismade before the final takingofevidence in the proceeding."
"(2) At any time before the final takingofevidence in a proceeding, any personmay apply to the commissioner for permission to appear and participate in the proceeding. Thecommissioner shall determine the interest ofthe applicant in the proceedingand shall grant the application, subject to appropriate conditions, ifhe determines that such appearance and participationwill not unreasonably broaden the issues
or burden the record, and otherwise may deny the application."

Thestatute, inand ofitself, does not guarantee that the commissioner will grant intervention to any interested citizen. Ifa prospective intervenor is able to show, however, that his participation "••• will not unreasonably broaden the issues or burden the record • • ." then he may participate.


### -3.10-However, ifORS756.525 does not meet EPA's requirements, the commissioner is able, without qUalification, to signa memorandumofagreementwith EPA guaranteeingthat hewill allow intervention by an interested citizen subject to the aforementioned statutory limitations.


### (3) There is no statutewhich provides for or prohibits the commissioner from giving 30days' notice for public comment on any proposed settlement ofa state enforcement action. Thecommissioner could agree to provide this notice ina memorandumofagreement with EPA.

TheDepartment regulates transportation byair orwater andhas authority to meet the above three requirements:
(1) ORS 459.650 gives the Department authority to investigate all citizen complaints; viz:
ft(1) Thedepartment shall investigate any complaintmade to it by any person that the operationofanygenerator, air or water transporter or hazardouswaste disposal, collectionor treatment site is unsafe or that the operationis inviolationofthe provisions ofORS 459.410 to 459.450 and 459.460 to 459.690 or the rules adoptedunder ORS 459.410 to 459.450 and459.460 to 459.690." 

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(2) and (3)

ZB3289.1 TheDepartment can enter into a memorandumofagreement with EPA as authorized by ORS 459.455. -3.11- 

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Date: Title: IX. OTHER

A. Informationwill be made available to EPA without restriction, consistent with ORS 459.460.

B. The State will not seek hazardous waste jurisdiction over Indian Lands.
STATE OF OREGON DEPARTMENT OFJUSTICE

# ~~aJ1.£/~~ Ass(stant AttorneY General

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### ,**.~** DAVEFROHNMAYER ATT08,NEYGENERAL



### DEPARTMENTOF JUSTICE PORTLANDOFFICE 500PacificBuilding

520 S.W.Yamhill Portland.Oregon97204 Telephone:(503)229-5725 November 18, 1985 WILLIAMF. GARY DEPUTYATTORNEYGENERAL

Michael 

### J. Downs, Administrator Hazardous and Solid Waste Division Department of Environmental Quality 522 S.W. Fifth Avenue Portland, OR 97204 Re: EQC Authority to Adopt Federal Rules by Reference Dear Mr. Downs: As part of Oregon's request for authorization of the state hazardous waste program, the U.S. Environmental Protection Agency has requested an opinion from our office as to whether the Environmental Quality Commission (EQC) has the authority to adopt federal regulations by reference. The EQC has such authority. Our office and the Oregon courts have consistently concluded that the adoption of existing, but not prospective, federal regulations is valid. E.g., Seale v. McKennon, 215 Or 562, 336 P2d 340 (1959); HTIIman v. Northern Wasco County People's Utility Dist., 213 Or 264, 325 P2d 664 (1958).

# -;:~~ {Michael B. Huston 'Assistant Attorney General MBH:bc**~._--** ,----_.....

.-Dear Mr. Downs: Background Re: Consistency of SB 138 with Federal Hazardous Waste Requirements WILLIAMF. GAR Y DEPUTYATTORNEYGENERAL 

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PORTLANDOFFICE 500Pacific Building

520 S.W.Yamhill Portland,Oregon97204 Telephone:(503)229-5725 November 18, 1985 

### DEPARTMENTOF JUSTICE

Oregon Department of Environmental Quality (DEQ) has for final authorization of the state's hazardous waste under the federal Resource Conservation and Recovery Act

One of the requirements for authorization of a state is that the program be consistent with the federal and other state programs. Michael 

### J. Downs, Administrator Hazardous and Solid Waste Division Department of Environmental Quality 522 S.W. Fifth Avenue Portland, OR 97204

The applied program (RCRA) • program program

IpCB is the acronym for the chemical compound polychlorinated biphenyl. PCB is more specifically defined for purposes of state law in ORS 468.900(1). As part of the authorization process, the U.S. Environmental Protection Agency (EPA) has asked for an analysis of SB 138 as it may affect the consistency of Oregon's hazardous waste program. In particular, EPA has noted provisions of SB 138 that deal with possible limitations on the disposal of hazardous waste in Oregon according to the waste's origin. In 1985, the Oregon Legislative Assembly enacted SB 138 (Oregon Laws 1985, chapter 670). This legislation contains significant new statutory provisions governing the regulation and licensing of facilities for the treatment or disposal of hazardous waste or PCB.l ATTORNEYGENERAL D'AVE FROHNMAYERMichael J. Downs November 18, 1985 Page No. 2
To respond to EPA's request, you asked our office for a legal analysis of the consistency question. We preliminarily advised you that the question was dependent upon future decisions yet to be made by DEQ and the Environmental Quality Commission (EQC). Based upon this advice, DEQ and EPA agreed that only one, narrower legal issue must be analyzed at this time--i.e., whether there are any provisions of SB 138 in effect today which would render Oregon's hazardous waste program inconsistent with federal requirements? The analysis offered below is addressed and limited to this issue. Analysis 1. The Federal Requirements for Consistency The federal requirements for consistency under RCRA have been delineated in administrative regulations adopted by EPA. These regulations provide in pertinent part: "To obtain approval, a State program must be consistent with the Federal program and State programs applicable in other States and in particular must comply with the provisions below. For purposes of this section the phrase "State programs applicable in other States" refers only to those State hazardous waste programs which have received final authorization under this part. (a) Any aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent. (b) Any aspect of State law or of the State program which has no basis in human health or environmental protection and which acts as a prohibition on the treatment, storage or disposal of hazardous waste in the State may be deemed inconsistent. (c) If the State manifest system does not meet the requirements of this Part, the State program shall be deemed insconsistent." 40 CFR § 271.4 (emphasis added.)

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### J. Downs November 18, 1985 Page No. 3
2. SB 138 In its request for an analysis, EPA points to two particular provisions of SB 138--sections 3 and 4. These sections provide as follows: "Section 3. (1) The Legislative Assembly finds it is in the interest of public health and safety and environment to protect Oregon citizens from the potential harmful effects of the transportation and treatment or disposal of hazardous waste and PCB within Oregon. (2) Therefore, the Legislative Assembly declares that it is the purpose of ORS 459.410 to 459.450 and 459.460 to 459.690 to: (a) Protect the public health and safety and environment of Oregon to the maximum extent possible; (b) Exercise the maximum amount of control over actions within Oregon relating to hazardous waste and PCB transportation and treatment or disposal; (c) Limit to the extent possible the treatment or disposal of hazardous waste and PCB in Oregon to materials originating in the states that are parties to the Northwest Interstate Compact on Low-Level Radioactive Waste Management under ORS 469.930; and (d) Limit to the extent possible the size of any hazardous waste or PCB treatment or disposal facility in Oregon to a size that is appropriate to treat or dispose of waste or PCB originating in Oregon and, if capacity permits, to waste or PCB originating in those states that are parties to the Northwest Interstate Compact on Low-Level Radioactive Waste Management under ORS 469.930). Section 4. "In order to carry out the provisions of ORS 459.410 to 459.450 and 459.460 to 459.695, the commission shall: (1) Limit the number of facilities disposing of or treating hazardous waste or PCB; (2) Establish classes of hazardous waste or PCB that may be disposed of or treated;

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# • ! , Michael 

### J. Downs November 18, 1985 Page No. 4 (3) Designate the location of a facility designed to dispose of or treat hazardous waste or PCB; and (4) Limit to the extent otherwise allowed by law, the hazardous waste or PCB accepted for treatment or disposal at a facility first to hazardous waste or PCB originating in Oregon, or if the capacity of the facility as established under section 5 of this 1985 Act allows, or it is necessary for the commission to receive and maintain state authorization of a hazardous waste regulatory program under P.L. 94-580 and P.L. 98-616, to states that are parties to the Northwest Interstate Compact on Low-Level Radioactive Waste Management as set forth in ORS 469.930." Or Laws 1983, ch 670, 55 3, 4 (emphasis added). The emphasized language of these sections does express a form of legislative preference for the treatment of wastes originating, first, in Oregon and, second, in the states that are parties to the Northwest Interstate Compact. In many respects, however, this legislative preference is significantly limited and conditional. First, section 3 is a general statement of legislative policy and is not self-executing.**See,~,** Riverside Irrigation Dist. v. Andrews, 758 F2d 508, 513 (10th Cir. 1985); Anderson v. Peden, 284 Or 313, 320, 587 P2d 59 (1978). Rather, it simply provides the policy framework for future implementing decisions of the EQC and DEQ. Secondly, section 4, although cast as mandatory directives to the EQC, similarly does not appear to have any immediate legal consequences. The directives do not require a particular action at a particular time. Instead, they are requirements that generally govern the EQC's hazardous waste decision making. Compliance with these requirements will be necessary only when the EQC undertakes the rulemaking and licensing decisions otherwise required by SB 138. Thirdly and finally, both section 3 and section 4 contain limiting clauses such as "to the extent possible" and "to the extent otherwise allowed by law." Section 4(4) is further subject to determinations involving the capacity of a hazardous waste facility and the need for the state to receive and maintain authorization of its hazardous waste program. These clauses and conditions strongly reinforce the conclusion that the legal significance of sections 3 and 4 of 5B 138 are subject to future agency determinations
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# • Michael 

### J. Downs November 18, 1985 Page No. 5
Conclusion The provisions of SB 138 that raise possible questions of consistency with federal law are not self-executing and have no present legal consequences. They are dependent upon future interpretation and application by the EQC and DEQ. Therefore, SB 138 presents no current inconsistencies between the state's hazardous waste program and federal requirements. Sincerely,

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# ~U~~e:>11**~chael** B. Huston Assistant Attorney General MBH:bc