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SECTION 3

ATTORNEY GENERAL'S STATEMENT
DAVE FROHNMAYER

ATIORNEY GENERAL

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DEPARTMENT OF JUSTICE

Justice Building

Salem. Oregon 97310

Telephone: (503) 378-4400

August 28, 1985

WILLIAM F. GARY

DEPUTY ATIORNEY GENERAL

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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).

~.~ vvee~ry truly,

~UDAVE FROHNMAYER r"r":

Attorney General

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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

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Notary

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ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION

I hereby certify, pursuant to my authority as Attorney General and in

accordance with Section 3006(b) of the Resource Conservation and Recovery

Act, as amended by the Hazardous and Solid Waste Amendments of 1984,

(42 USC 6901, et seg,>. and 40 CFR 271, that in my opinion the laws of the

state of Oregon provide adequate authority to carry out the program set

forth in the "Program Description" submitted jointly by the Oregon

Environmental Quality Commission and the Department of Environmental

Quality. The specific authorities provided, Which are contained in

statutes or regulations lawfully adopted at the time this Statement is

signed and which shall be fully effective by the time the program is

approved, include those identified below•

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

In oertain instances, more specific authority may also be cited.

I. IDENTIFICATION AND LISTING

A. State statutes and regulations define hazardous waste so as to

oontrol all hazardous waste oontrolled under 40 CFR 261 as

indicated in Checklist I-A.

The basio definition of hazardous waste is found in ORS

459.410(6). The use of the term "residue" in ORS 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

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excluded by variance granted under 40 CFR 260.30 and 260.31, that

is abandoned, recycled or considered inherently waste-like;, that

are intended to be covered by EPA's definition in RCRA 1004(27)

as the terms are used in RCRA and EPA regulations. Further,

Oregon rules (340-100-010(2)(z» define residue equivalent to the

meaning of solid waste in 40 CFR 261.2.

The language "any process of industry, manUfacturing, trade or

business or government or recovery of natural resources" is

equiValent to the use of the terms "industrial, commercial,

mining and agricultural operations and from community activities"

in RCRA 1004(27).

B. State statutes and regulations contain a list of hazardous waste

and characteristics for identifying hazardous waste which

encompass all wastes controlled under 40 CFR 261 as indicated in

Checklist I-B and C.

Citation: ORS 459.410(6).

II. STANDARDS FOR GENERATORS

State statutes and regulations provide coverage of all the generators

covered by 40 CFR 262 as indicated in Checklist II.

Citation: ORS 459.445.

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III. STANDARDS FOR TRANSPORTERS

State statutes and regulations provide coverage of all the

transporters covered by 40 CFR 263 as indicated in Checklist III.

The DEQ and PUC have authority to regulate transportation of hazardous

waste which 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 management facilities 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 indicated in Checklist IV-B.

1. State statutes and regulations authorize owners and

operators of hazardous waste management facilities which

would qualify for interim status under the federal program

to remain in operation until a final decision is made on the

permit application.

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2. State law and regulations authorize continued operation

of hazardous waste management facilities provided that

owners and operators of such facilities comply with

standards at least as stringent as EPA's interim status

standards of 40 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

establishing minimum requirements for the treatment, storage

and disposal of hazardous wastes, minimum requirements for

operation, maintenance, monitoring, reporting and

supervision of treatment, storage and disposal sites, and

requirements and procedures for selecting such sites. This

is in addition to and independent of whether or not a site

is permitted and is to assure that minimum management

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 in Oregon have been issued state permits'

which are not RCRA permits, i.e., which are not joint

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EPA-DEQ permits. Such facilities are required to comply

with the requirements of 40 CFR Part 265, in addition to the

terms of the 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

indicated in Checklist V.

As authorized by ORS 459.455, the DEQ or EQC may enter into an

agreement with EPA establishing certain procedural requirements as

opposed to adopting specific rules. Such an agreement may limit the

use of waiver, variance, or exemption authorities so that no

requirement less stringent than the comparable federal requirement is

imposed. There is no conflicting statute which 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 regulation or in which records relevant to program

operation are kept in order to inspect, monitor, or otherwise

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investigate compliance with 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. ENFORCEMENT REMEDIES

State statutes and regulations provide the following:

A. Authority to restrain immediately by order or by suit in state

court any person from engaging in any unauthorized activity which

is endangering or causing damage to public health or the

environment.

Citation: ORS 459.680 and 459.690.

B. Authority to sue in courts of competent jurisdiction to enjoin

any threatened or continuing violation of any program

requirement, inclUding permit conditions, without the necessity

of a prior revocation of the 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 obtain criminal penalties in at least the amount of

$10,000 per day for each violation, and imprisonment for at least

six months against any person who knowingly transports any

hazardous waste to an unpermitted facility; who treats, stores,

or disposes of hazardous waste without a permit; or who makes any

false statement or representation in any application, label,

manifest, record,report, permit, or other document filed,

maintained, or used for the purposes of program compliance.

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

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E. There is no state statute that might be construed to require that

the burden of proof under state law in civil and criminal

proceedings be greater than the burden of proof or degree of

knowledge or intent EPA must provide.

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VIII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS

State laws and regulations provide for public participation in the

state enforcement process by providing assurances that the state

agency or enforcement authority will:

(1) Investigate 'and provide written response to all citizen

complaints duly SUbmitted;

(2) Not oppose intervention by any citizen in a state civil enforcement

action brought in a court where permissive intervention may be

authorized by statute, rule or regulation; and

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(3) Publish notice of and provide at least 30 days for public comment

on all proposed settlements of state civil enforcement actions

brOUght in a court, except in cases where a settlement requires

some immediate action (e.g., cleanup) which if otherwise delayed

could result in substantial damage to either public health or the

environment.

This pertains to wastes which are radioactive in addition to

being hazardous wastes.

The Public Utility Commissioner regulates transportation by motor

vehicle or rail/and has authority to meet the above three

requirements:

( 1) ORS 756.515 (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 investigation of any matter relating to any public

utility, railroad, air carrier, motor carrier or other

person should be made, or relating to any person to

determine if such person is subject to the commissioner's

regulatory jurisdiction, he may on his own motion summarily

investigate any such matter, with or without notice. ft

This statute gives the commissioner authority to investigate and

provide written responses to any citizen complaint.

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(2) ORS 756.525 deals with intervention by citizens in PUC

proceedings. Since this statute includes all proceedings

before the agency, it obviously deals with citizen

intervention in matters concerning the transportation of

hazardous waste. The statute provides, in relevant part,

that:

"(1) The commissioner may permit any person to become a

party who might, on the institution of the proceeding,

have been such a party, if application therefor is made

before the final taking of evidence in the proceeding."

"(2) At any time before the final taking of evidence in a

proceeding, any person may apply to the commissioner

for permission to appear and participate in the

proceeding. The commissioner shall determine the

interest of the applicant in the proceeding and shall

grant the application, subject to appropriate

conditions, if he determines that such appearance and

participation will not unreasonably broaden the issues

or burden the record, and otherwise may deny the

application."

The statute, in and of itself, does not guarantee that the

commissioner will grant intervention to any interested citizen.

If a prospective intervenor is able to show, however, that his

participation "••• will not unreasonably broaden the issues or

burden the record • • ." then he may participate.

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However, if ORS 756.525 does not meet EPA's requirements, the

commissioner is able, without qUalification, to sign a

memorandum of agreement with EPA guaranteeing that he will allow

intervention by an interested citizen subject to the

aforementioned statutory limitations.

(3) There is no statute which provides for or prohibits the

commissioner from giving 30 days' notice for public comment

on any proposed settlement of a state enforcement action.

The commissioner could agree to provide this notice in a

memorandum of agreement with EPA.

The Department regulates transportation by air or water and has

authority to meet the above three requirements:

(1) ORS 459.650 gives the Department authority to investigate

all citizen complaints; viz:

ft(1) The department shall investigate any complaint made to

it by any person that the operation of any generator,

air or water transporter or hazardous waste disposal,

collection or treatment site is unsafe or that the

operation is in violation of the provisions of ORS

459.410 to 459.450 and 459.460 to 459.690 or the rules

adopted under ORS 459.410 to 459.450 and 459.460 to

459.690."

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(2) and (3)

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The Department can enter into a memorandum of agreement

with EPA as authorized by ORS 459.455.

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By:

Date:

Title:

IX. OTHER

A. Information will 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 OF JUSTICE

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Ass(stant AttorneY General

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Title:

Date:

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DAVE FROHNMAYER

ATT08,NEY GENERAL

DEPARTMENT OF JUSTICE

PORTLAND OFFICE

500 Pacific Building

520 S.W. Yamhill

Portland. Oregon 97204

Telephone: (503) 229-5725

November 18, 1985

WILLIAM F. GARY

DEPUTY ATTORNEY GENERAL

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

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Dear Mr. Downs:

Background

Re: Consistency of SB 138 with Federal Hazardous Waste Requirements

WILLIAM F. GAR Y

DEPUTY ATTORNEY GENERAL

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PORTLAND OFFICE

500 Pacific Building

520 S.W. Yamhill

Portland, Oregon 97204

Telephone: (503) 229-5725

November 18, 1985

DEPARTMENT OF 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

I pCB 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

ATTORNEY GENERAL

D'AVE FROHNMAYER
Michael 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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Michael 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, ~~A~

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~chael B. Huston

Assistant Attorney General

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