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•**~S~** Christine O. Gregoire 

# ATTORNEY GENERAL OF WASHINGTON Ecology Division 629 Woodland Square Loop SE 4th Floor • LaceyWA 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 ofWashington 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 managementprogram 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 ofEcology'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 exteriorreservation boundaries ofall Federallyrecognized Indian Tribes in Washington State. This legal analysis is written to supportEcology'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 generaljurisdiction over non-trust land within the exterior reservation boundaries ofFederally recognized Indian tribes, and that this generaljurisdiction 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 generaljurisdiction. 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 managementprogram 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 implementthe 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 SettlementAgreement, "the federal, state and local governments have exclusivejurisdiction 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 exercisejurisdiction, 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 ofWashington 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 bythe Washington State Attorney General's Office in support ofthe authorization requests for the currentprogram. 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 of1995, the Washington State Legislature adopted ESHB 1010, codified at Chapter43.05 ofthe Revised Code ofWashington (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 ofWashington'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 ofassistants 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 

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