November 5, 1982 . ....... 

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# ~_?**~,(/h"',-** KenEikenberry,AttorneyGeneral ' ':?I:' ,..i'I TempleofJustice, Olympia,washington98504

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### 1982

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Ted Rogowski Senior Associate Attorney for Special Projects Environmental Protection Agency l200-6th Avenue Mail Stop: 613 Seattle, Washington 98101 Re: RCRA Authorization Dear Ted: Enclosed please find the memorandum which I mentioned to you this morning. As I stated, I will be out next week. We would appreciate your comments; perhaps Charlie Roe could assist in this while I am on leave. Very truly yours,

Charles K. Douthwaite Assistant Attorney General CKD:pk Enclosure

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Inter-officeCorrespondence Date N ovember 2, 1982
Th: Charlie Roe
From: Charlie Douthwaite

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Subject: Hazardous \"1aste Program Attorney General's Statement --Status
This note is intended to suggest responses to the issues discussed at our October 5, 1982 meeting with Jim Moore and his staff in Seattle. I spoke with Ted Rogowski at length about these items; he is now handling this matter at r1oore's request. The items on the agenda now appear to be as follows:
1. Signature of Attorney General. This issue now seems to be fading away.
2. Indian Lands Authority. The State and EPA agree to disagree. This approach evidently will not hold up the State's application for interim authorization.
3. EFSEC. We are moving ahead with a Memorandum of Agreement and an EFSEC emergency regulation. I understand that EPA will not start their 90-day review period (see 40 CFR l23.39(d)) until these items and some response to the next item are received.
4. Enforcement Authority. 

## Aresponse to this issue is attached.I .--"

. OF.F.ICE'OFTHEATTORNEY GENER.**~.-**..- .' Charlie Roe Page Two November 2, 1982 Inter-OfficeCorrespondence

5. Definition of Disposal. The question is whether DOE has authority to define "disposal" to include discarding or abandoning of dangerous wastes. Compare**R~v** 70.l05.010(4) with \-vAC 173-303-040(25). I believe necessary authority was granted in 1980. See, RCW 70.105.130.
6. Entry Authority. The question is whether the language in RCW 70.105.130, It

. establishments regulated under this section

... ", includes generators of dangerous wastes. I believe that the answer is yes. ItGenerator" is defined to include organizations such as private corporations. See, WAC 173-303-040(35); see also, RCW 70.l05.010(7).

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7. Authority Over Federal Government Agencies. The question is whether Itperson," defined in RCW 70.105.010(7) to include any It.•• public or municipal or private corporation, agency, or other entity whatsoever", includes federal government agencies. I believe the Itcatch-all" language Itother entity whatsoever" covers federal agencies, particularly since I find no evidence that such agencies were excluded.
8. EPA Access to Information. This issue now seems to be whether the Director of DOE can grant a raquest; to keep Lnformat.Lo-. confidential (see.**?C~"** 43.21A.160) on the condition that EPA would be allowed to**ey~~ine** said information. EPA can commit to withhold confidential information only to the extent that federal law permits. See, 40 CFR part 2. The Director, under RCW 70.105.160, is authorized to provide confidentiality in his discretion when the public interest would not be detrimentally affected. The power to approve implies the power to approve upon conditions. State v. Crown Zellerbach Corp., 92 Wn.2d 894, 899 (1979).
9. Public Participation in the Enforcement Process. This issue evidently can be resolved if DOE makes some assurance that it will not oppose intervention in any Itcontested case" enforcement proceedings unless the public interest clearly requires**~FFICE** OFTHEA'M'ORNEYGENERt..:'- Cl1arlie Roe Page Three November 2, 1982 Inter-OfficeCorretlpondence

that intervention be contested. DOE rules already provide considerable assurance in this area. See, WAC 173-303-840(3); WAC 173-303- 900.
10. Definition of Discarded Chemical Product. The issue is whether WAC 173-303-081(1) (a) includes the same materials as are covered by 40 CFR 26l.33(a). In my opinion the answer is yes.
11. Out-of-State Shipment of Hazardous Wastes. The issue here is whether DOE regulations require that a generator shipping wastes out of state send said wastes to a TSD facility operatLnq in the receiving state under' a federal or approved state permit. This requirement is not stated expressly in DOE regulations. WAC 173-303-141. EPA and DOE staffs apparently are developing an interpretation of DOE regulations to deal with this issue. CKD:pk Attachment

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### Question: Has the Washington state Legislature authorized imposition ofcivil and criminal penalties for documented violations ofch. 173-303 WAC? Answer: Yes. See analysis below.

In 1976 the legislature authorized the Washington State Department of Ecology (DOE) to regulate "extremely hazardous waste" disposal. See, Laws of Washington, 1975-76 2d. Ex. Sess., chapter**101~ow** 

### codified at RCW 70.105.010 through RCW 70.105.090). "Extremely hazardous waste" was defined as a subcategory of "dangerous waste." RCW 70.105.010(6). In 1976 the Department of Ecology was authorized to adopt rules identifying "dangerous waste"; at that time, only extremely hazardous waste (EHW) was subject to regulation. In 1980 the legislature authorized DOE to implement RCRA in Washington State. See, Laws of Washington, 1980, chapter 144 (now codified**~RCW** 

### 70.105.130). The 1980 legislation made "dangerous wastes" subject to regulation. RCW 70.105.130. "Dangerous wastes" are equivalent to "hazardous wastes" regulated under RCRA; EHW includes a far more limited class of materials. The 1980 grant of authority to regulate DW was essential to implement RCRA. In February, 1982, the Department of Ecology adopted rules intended to implementRCRA. See, ch. 173-303 WAC. Civil and criminal penalties for violations of tha D0E 

### hazardous waste rules were authorized in 1976. Civil penalties were provided in RCW 70.105.080, which states, in part, that: Every person who fails to comply with any provision of RCW 70.105.010 through 70- .105.090 or of the rules adopted thereunder shall be subjected to a penalty in an amount of not more than one thousand'dollars per day for every such violation

. . Criminal penalties were provided in RCW 70.105.090, which states, in part, that: In addition to the penalties imposed pursuant to RCW 70.105.080, any person who violates any provisions of RCW 70.105.010 through 70.105.090, or of the rules implementing RCW 70.105.010 through 70.105.090

. shall be quilty ofa gross misdemeanor • . . .

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It could be argued that violations of the current rules are not subject to penalties because ch

. 173-303 WAC was not adopted "under" RCW 70.105.010 through 70.105.090, orbecause ch. 173-303 WAC was not intended to "implement" RCW 70.105.010 through RCW 70.105.090. This argument is withoutmerit. Chapter 173-303 WAC combined elements ofthe legislative authority granted in 1976 and 1980. Chapter 173-303 WAC cannot be divided according to authority granted in 1976 versus authority granted in 1980 because application of all the substantive rules (primarily.authorized in 1980) begins with the identification of "dangerous waste" (authorized in 1976). The substantive rules do not make any sense without rules identifying the regulated materials, i.e., DW or EHW. The public record supports the analysis above. The Administrative Order adopting ch. 173-303 (copy attached as EXhib17 1) identifies ch. 70.105 RCW as authority for adoption. WAC 173-303-010 states, in part, that "This regulation implements chapter 70.105 RCW, the Hazardous Waste Disposal Act of 1976 as amended in 1980

. . . ." Furthermore, the Department of Ecology has already assessed penalties under authority of RCW 70.105.080 where violations of ch. 173-303 WAC have been documented. See, Exhibits 2 and 3 attached hereto.

-- The conclusion suggested here is that ch. 173-303 WAC was adopted under and implements RCW 70.105.010 through 70- .105.090. Enactment of RCW 70.105.130 was also necessary to adoption of ch. 173-303 WAC but that conclusion does not invalidate what appears in the record, i .e., adoption of ch. 173-303 WAC was authorized by and implements the combination ofRCW 70.105.010 through 70.105.090 and RCW 70.105;130. The language of RCW 70.105.080, "Any person who fails to comply with any provision of RCW 70.105.010 through 70.105- . 090 or of 't.i.le rules adopted**!.:he:.:'eun~er** 

### . . .," dc es not require that rules be adopted under the sole, exclusive, authority of RCW 70.105.010 through 70.105.090. Similarly, the language of RCW 70.105.090 "Any person who violates any provisions of RCW 70.105.010 through RCW 70.105.090 or of the rules implementing RCW 70.105.010 through 70.105.090

.. does not require that said rules implement only RCW 70.105.010 through 70.105.090. Violators of ch. 173-303 WAC are thus subject to civil penalty under RCW 70.195.080 and criminal penalties under RCW 70.105.090. 

## !I Department of Ecology regulations are adopted by order ofthe Director of the Department. The order adopting regulations is in a form promulgated by the Washington State Code Reviser's Office. See, WAC 1-12-930. Aparticular form of statement which specIfically identifies the Department's authority to adopt rules is required by statute. See, RCW 34.04.026.

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### Accepted rules of statutory construction support the position outlined above. The legislature clearly intended that the Department ofEcology implement RCRA inWashington. See, RCW 70.105.130. In 1980 the legislature authorized a regulatory program to accomplish this goal. This effort would have been meaningless. without enforcement authority. The legislature is presumed not to engage in meaningless acts. state v. Wanrow, 88 Wn.2d 221 (1977). Aliteral meaning of the statute will be set aside when not in accord with obvious legislative intent. Silver Shores Mobile Horne Park,' Inc. v. Cit¥ of Everett, 87 Wn.2d 618, 620 (1976) (and cases cited**there~n).** 

### Conclusion The Department of Ecology has authority to assess civil penalties upon determining that a violation of ch. 173-303 has occurred. Criminal penalties are also available. The legislature appears to have intended to grant such authority in order to implement RCRA in Washington state. Furthermore, ch. 173-303 WAC was adopted under and implements RCW 70.105- .010 through 70.105.090, although the authority granted by RCW 70.105.130 was also necessary to adoption.

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# . -. Moptbag chapter 173-303 WAC-DANGEROUS WASTE IlECULATIONS, and**repe~1Dg** chapter 173-302 WAC-HAZARDOUS WASTE REGULATION. J.'

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### --.**~J** DEPAR'lHENT QF ECOLOGY INTHEMATTER OF THE ASSESSMENT OFPENALTY AGAINST TRAVIS PATTERN AND YOUNDRY, tRC. ) ) ) _OTICE OF PENALTY INCURRED AND DUE Docket No. DE 82-452
To:

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### • Hr. Bill Graske Travis Pattern and Foundry, Inc• E. 1413**Ba~horne** Road P.O. Box 6325 Spokane, WA 99207-0905
Notice is hereby given that you have incurred, and there is now due from you, -.lenalty in the amount of $.1,000.00 under the provisions of RCW**70.105.~.** !he basil for thll penalty is that on the 20th day of July 1982, an employee of Travis Pattern and Foundry, Inc. (Spokane) intentionally discharged approximately 275 gallons of material containing Trichloroethylene,
• dangerous waste, into the aoil inviolation of RCW 70.105.050. The penalty herein described is due and**paya~le** by you within thirty (30) days of your receipt of this Notice. If, however, for any reason, you believe that the violation herein described did not occur or that you have an explanation as to whyit occurred, or any other fact which you believe the department should consider with regard to this penalty, and desire to submit an "APPLICATION FOR RELIEF FROM PENALTY," you should set forth these facts on the enclosed form and return it to the department within fifteen (15) days. This form must be signed under oath before a notary public or any other person authorized to take oaths. Upon receipt of an "APPLICATION FOR RELIEF FROM PENALTY," the department will consider the same and will either reduce the penalty, remit the penalty, or allow it to remain as originally stated. You vill be duly**no~ified** by**t~e** department of**~t8** action. DATED at Olympia, Washington 

### JUL 3 0 1982.

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# Bru~meron ..' Assistant Director Department of Ecology State of Washington



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..-..... DEI'ARTMENT OF ECOLOGY IN THEMATTER OF THE ASSESSMENT OFPENALTY AGAINST -,C;RINGTON CHrJotICAL, INC. ) ) ) NOTICE OF PENALTY tNCURRED AND DUE Dock.et No.' DE 82-47S To: Mr. Donn •• 1Ierron Washington Chemical, Inc. P. O. Box 743 Spokane, WA 99210 Notice is hereby given that you have incurred, and there is no.... due from you, a penalty in the amount of $1,000.00 under the provisions of ROW 70.105.080. 

### On August 5, 1982, an investigation at the northwest corner of Napa Street and Grace Avenue, Spokane Washington, revealed that Washington Chemical, Inc. was storing 108 S5-gallon drums of hazardous waste. Many of the drums were damaged, with bulging tops and in a rusty condition. Numerous drums were leaking, none of the drums had proper hazardous waste lables, and not all of the drums had product labels. Storing hazardous wastes without a permit and in the manner described above is a violation of the following regulations: 1. WAC 173-303-190(2) and (3) 2. WAC 173-303-310(2)(a) and (c) 3. WAC 173-303-320 4. WAC 173-303-340 5. WAC 173-303-380 6. WAC 173-303-400(3) 7. WAC 173-303-815(4) 8. WAC 173-303-820(2)(c) The"penalty herein described is due and payable by you within thirty (30) days of your receipt of this Notice. If, ho

....ever. for any reason,**~ou** believe that the violation herein described did not occur 'or that yvu**hav~** sn explanation as to**w~y** it occurred. or any other fact which you believe the,department should consider with regard to this penalty, and desire to submit an "APPLICATION FOR RELIEF FROM PENALTY," you should set forth these facts on the enclosed form and return it to the department within fifteen (15) days. This form must be signed under oath before a notary public or any other person authorized to take oaths.

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### \ Upon receipt of an "APPLICATION FOR RELIEF FROM PENALTY," the department will consider the same and will either reduce the penalty, remit the penalty, or allow it to remain as originally stated. You w11l be duly notified by the department of its action. DATFJ> at'Olympia, Washington 

### AUG 2 0

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# ~~ Bruce A. meron Msistant Director Department of Ecology State of Washington