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Christine O. Gregoire

ATTORNEY GENERAL OF WASHINGTON

Ecology Division

629 Woodland Square Loop SE 4th Floor • Lacey WA 98503

Mailing Address: PO Box 40117 • Olympia WA 98504-0117

ATTORNEY GENERAL STATEMENT

ECOLOGY'S AUTHORITY TO IMPLEMENT REQUESTED AUTHORIZATION

I hereby certify, in accordance with 40 C.F.R. 271.7, that the laws ofthe State of Washington

provide the Washington State Department ofEcology (Ecology) with adequate authority to carry

out all aspects ofthe proposed revision ofits existing authorized program. ,

Ecology is presently authorized by the United States Environmental Protection Agency (EPA) to

administer Ecology's state hazardous waste management program in lieu ofmany federal

provisions in the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Sec. 6901 et seq.

The various EPA approvals of Ecology's program are set forth at 51 Fed. Reg. 3782 (1986); 52

Fed. Reg. 35556 (1987); 55 Fed. Reg. 33695 (1990); 59 Fed. Reg. 55322 (1994); and 61 Fed.

Reg. 7736 (1996). Ecology's existing authorization for its hazardous waste management

program is limited to lands outside the exterior reservation boundaries of all Federallyrecognized Indian Tribes in Washington State.

This legal analysis is written to support Ecology's request for a revision ofits existing RCRA

authorization to cover non-trust lands within the 1873 Survey Area ofthe Puyallup Reservation.

Ecology believes that it has general jurisdiction over non-trust land within the exterior

reservation boundaries of Federally recognized Indian tribes, and that this general jurisdiction

provides Ecology with sufficient authority to carry out the proposed revision ofits authorized

program. However, for the limited purpose ofsupporting Ecology's request for a revision ofits

authorization to certain lands within the Puyallup reservation, this legal analysis will not attempt

to set forth sufficient legal basis to establish Ecology's general jurisdiction.

A separate basis for Ecology authority exists and will be relied upon to demonstrate that Ecology

has adequate authority to carry out its hazardous waste management program on non-trust lands

within the 1873 Survey Area ofthe Puyallup Reservation. Accordingly, the conclusion in this

legal analysis that Ecology has adequate authority to implement the proposed revision ofits

authorized program is based solely on the Puyallup Tribe oflndians Settlement Act of 1989,25

U.S.C. §§ 1773 et seq., which approves, ratifies and confirms a settlement agreement between

the Puyallup Tribe, Federal, State and local governments dated August 27, 1988. See 25 U.S.C.

§ 1773(b)(l); 25 U.S.C. § l773j(3).

The Washington Indian (Puyallup) Land Claims Settlement (Settlement Agreement), states that

for the purposes ofthe Settlement Agreement, "the federal, state and local governments have

exclusive jurisdiction for the administration and implementation offederal, state and local

environmental laws on non-trust lands within the 1873 Survey Area." See Section VIII(A)(3) of

the Settlement Agreement. The Puyallup Tribe ofIndians Settlement Act of 1989 provides that

the State "shall retain and exercise jurisdiction, as provided in the Settlement Agreement ...."

See 25 U.S.C. § 1773(b)(1); 25 U.S.C. § 1773g.

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ATTORNEY GENERAL OF WASHINGTON

• The Puyallup Tribe ofIndians Settlement Act of 1989, sets forth sufficient basis for establishing

that the State of Washington has adequate authority to administer state environmental laws on

non-trust lands within the 1873 Survey Area. This authority allows Ecology to be authorized to

administer its state program on non-trust lands within the 1873 Survey Area in lieu ofthe federal

RCRA program. Accordingly, it is my opinion that Ecology has sufficient authority to

implement the proposed revision ofits existing RCRA authorization to cover non-trust lands

within the 1873 Survey Area ofthe Puyallup Reservation.

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The proposed revision ofEcology's RCRA program does not modify in any manner the state

regulations that currently apply through Ecology's RCRA program, and thus this statement of

authority is also relying on the analysis submitted previously by the Washington State Attorney

General's Office in support ofthe authorization requests for the current program. There have

been no changes in state or federal law that impact the validity ofthe prior AG Statements, and.

thus those statements also support this current authorization request.

As a part ofthe Regulatory Reform Act of 1995, the Washington State Legislature adopted

ESHB 1010, codified at Chapter 43.05 ofthe Revised Code of Washington (RCW). Portions of

Ch. 43.05 limited Ecology's authority to issue penalties in certain circumstances. See RCW

43.05.050-.070. These limitations threatened the validity of Washington's Dangerous Waste

Program because Ecology's authorization is dependent upon its program being at least as

stringent as the federal RCRA program. To ensure that Washington's dangerous waste program

is as stringent as the federal RCRA program, Ecology determined pursuant to RCW 43.05.901

that the limitations ofEcology's authority to issue penalties in RCW 43.05.050-.070 would not

apply to the portions of the state dangerous waste program that implement federal RCRA

requirements. Notice was sent to the Governor and the Legislature as required by RCW

43.05.901 on December 10,1997. Ecology, therefore, has resolved any issues raised by Ch.

43.05 RCW concerning this authorization request.

Finally, my authority for making this certification can be found at RCW 43.10.060 which

authorizes the appointment of assistants to the Attorney General and provides those assistants

with authority to perform the same activitiesthe Attorney General is authorized to perform.

Thomas C. Morrill

Assistant Attorney General

April d,.., 1998