November 5, 1982

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CfFFICE OF THE ATTORN£V GENERAL ~_?~,(/h"',- Ken Eikenberry, Attorney General ' ':?I:' ,..i'I Temple of Justice, Olympia, washington 98504 . - ",.~.

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t:..; . ,\EGION X -.,)

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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OFFICEOF THE

ArlDRNEYGENERAL

Inter-office Correspondence Date Novembe r 2, 1982

Th: Charlie Roe

From: Charlie DouthwaiteCD

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.

A response to this issue is attached.
I .--"

. OF.F.ICE'OF THE ATTORNEY GENER. ~.- ..- .'

Charlie Roe

Page Two

November 2, 1982

Inter-Office Correspondence

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). --- --------

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 r aques t; 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 OF THE A'M'ORNEY GENERt..:'-

Cl1arlie Roe

Page Three

November 2, 1982

Inter-Office Corretlpondence

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 oper atLnq 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 of civil and criminal penalties for documented

violations of ch. 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

implement RCRA. 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 of a gross misdemeanor • . . .
·--'

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, or because

ch. 173-303 WAC was not intended to "implement" RCW 70.105.010

through RCW 70.105.090. This argument is without merit.

Chapter 173-303 WAC combined elements of the 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 of RCW 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

of the 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. A particular 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 of Ecology implement RCRA in Washington.

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). A literal 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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WORM OF ORDER AND TRANS'MITTAL BY AGENCY HAVING SINGLE BEAD

.~l.. te of WalhiDrioD

"",_~qency lWDe)

.::.dmIDlltrat.i.Ytt,Order No. ~DE=-.=.8.:::..1--=3~3 _

(1)1, Qonald W. ~Qs.

the_Department of Ec~logy

I director of

do prumula.Le and adopt at the Department of Ecology, Lacey, Wa~h1ngton,

(pl.ce)

the anMud rules relatinr to:

. -.

Moptbag chapter 173-303 WAC-DANGEROUS WASTE IlECULATIONS, and

repe~1Dg chapter 173-302 WAC-HAZARDOUS WASTE REGULATION.

J.'

(2) A~TE~N~I~Il~'5t 'd~!<fl~X2~o,r ~~_o~t.!8~7or PII~t~8f~ Rulet.. 10{H~h8F£1~~~!'82 ThiS actIOn 16 taken pursuant to ~otlce ~~ fired ..iUi the Code reviser on I Such

yules lhalJ take effect: .

. pursuant 10 RC\\' 34.0UMO(2). . I I ·.t a later date, wch date being _

(2) ALTERNATIVE B. Vae ODJy lor AdoptiOD or Emer,eDcy Ruin.

I, find that

an emergency tlisu and that the foreguing order is necessary (or the preservation of the pub!ic health,

eafely, or general welfare and that observance of the requirementa of notice and opportunity to present

views on the proposed action would be contrary to public interest. A statement of the Iaets constituting

luch emergency ia:
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P'-..

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DEPAR'lHENT QF ECOLOGY

IN THE MATTER OF THE ASSESSMENT

OF PENALTY AGAINST

TRAVIS PATTERN AND YOUNDRY, tRC.

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_OTICE OF PENALTY

INCURRED AND DUE

Docket No. DE 82-452

To:

.. ..:. ...

•

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 in violation 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 why 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.

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.

. (

~J ·1"1"';"';'(--1 Bru~meron ..'

Assistant Director

Department of Ecology

State of Washington

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DEI'ARTMENT OF ECOLOGY

IN THE MATTER OF THE ASSESSMENT

OF PENALTY AGAINST

-,C;RINGTON CHrJotICAL, INC.

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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 t he 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.

ro

U"l.\

Upon receip t 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 0 198~" ,

-.A

Bruce ,: 13;'1A.\me

..I...L('......L..

ron

L.l-l\\-."~~ Msistant Director

Department of Ecology

State of Washington