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• Ken Eikenberry 

# ATTORNEYGENERALOFWASHINGTON 7t!lFLOOR,HIGHWAYS·L1CENSES BUILDING • OLYMPIA. WASHINGTON98504·8071 CERTIFICATION OF THEATTORNEY GENERAL STATE OFWASHINGTON
INTRODUCTION In accordance with Section 3006(b) ofthe Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and SolidWaste Amendments of 1984 (42 U.S.C. 6901 et seq.), and 40 CFR271, it is my opinion as an AssistantAttorney General ofthe State ofWashington that the laws ofthe State ofWashington provide adequate authority to carry out the revisedprogram set forth in the revised "ProgramDescription" submittedby the Washington State Department ofEcology. The State Department ofEcology is designated as the agency for implementing RCRA and adopting rules thereunder, at RCW 70.105.130 and more recently by RCW 70.105B.030(1)(b). The specific authorities to carry out the revised program are contained in the statutes or regulations specified below. The cited statutes and regulations are laWfully adopted and currently in effect at this time. I. Part 260, Subpart B DEFINITIONS State regulations define the terms "active life," "final closure," "dangerous waste management unit" and "partial closure" in a manner identical, or nearly identical, to those definitions set forth in 40 CFR260.10. Citation: WAC 173-303-040(108) 173-303-040(109) 173-303-040(111) 173-303-040(110) II. Part 264, Subpart Gand Part 265, Subpart G CLOSURE AND POSTCLOSURE State regulations require compliance with closure and post closure and financial responsibility requirements applicable to owners and operators of all dangerous waste management facilities and owners and operators ofother specified units or facilities which require post closure care as indicated in Revisions Checklist 24 and 27.

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• OFFICE OFTHE ATTORNEYGENERAL

[Federal Authority: RCRA §§ 3004 and 3005; 40 CFR Parts 260, 264, 265 and 270, as amended, May 2, 1986] Citation: See Revision Checklist 24 III. Part 264, Subpart Hand Part 265, Subpart H FINANCIALREQUIREMENTS State regulations require compliancewith financial assurance requirements as set forth in Revision Checklist 24 and Revision Checklist 27. Additionally, state law allows companies that treat, store or dispose ofhazardous waste to demonstrate alternative coverage for liability insurance in the form ofa corporate guarantee. (Federal Authority: RCRA §§ 2002, 3004 and 3005, 40 CFR 264.147 and 264.151, as amended July 11, 1986.J Citation: RCW 23A.08.020(9); see also Revision Checklists 24 and 27 Remarks: The Substantive Provisions Chapter ofthe Washington Business Corporation Act, ch, 23A.08 RCW, sets forth the general powers ofbusiness corporations in Washington State. Among those powers is the following: To make guarantees respecting the contracts, securities, or obligations of any**perso~** !lncluding, but not limited to, any**S~l.'**r e ho1der , any affiliated or unafflilated Individual, domestic or fore:**l~** corporation, partnership, association, :'JInt ve nt.ur-e or trust) if such qua r ar.tce may reasonably be expected to beneflt, directly or indirectly, the**guar~~tor** corporation. As to the**enforce~bll** lty of the guarantee, the**decis:~n** of the board ofdirectors that the**gu~r~ntee** may be reasonably expected to beneflt, directly or indirectly, the guarantor corporation shall be binding in respect to the issue ofbenefit to the guarantor corporation. RCW 2JA.OS.020(9)

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• IV. OFFICEOFTHEATTORNEYGENERAL

Pursuant to this power, a corporationmay contract or promise to guarantee payment for the default or other obligation of another corporation orperson, so long as the Board ofDirectors ofthe guaranteeing corporation finds such guarantee may be reasonably expected to benefit, directly or indirectly, the guarantor corporation. Such a determination by the Board is then binding when one seeks to enforce the guarantee. Further, inWashington, a third party may sue on an indemnity contract where the party is able to prove the contract creates a direct obligation in his favor. Simons v. Tri-State Construction Co., 33 Wn. App. 315, 655 P.2d 703 (1982); Burke Thomas, Inc. v. International Organization ofMasters, 92 Wn.2d 762, 600 P.2d 1282 (1979). Where parties to a contract intend that the promisor assume a direct obligation to the intended beneficiary at the time they enter into the contract, the contract would generally be enforceable by that third party. The corporate guarantee form creates a contractual relationship between the principal and guarantor, running to the benefit ofcertain third parties. Pursuant to RCW 23A.08.020(9), this is a legal document and enforceable by third parties in Washington. Part 270, Subpart B A. PERMIT APPLICATION State regUlations set forth the requirements ofa Part B permit application, the types of changes which may be made to permits issued by the Department and interim status permit requirements as indicated in Revision Checklist 24. Citation: See Revision Checklist 24 B. PERMIT CERTIFICATION (OWNER) In 1986, the Washington State legislature adopted a revision to ch. 70.105 RCW, dealing with permit applications for hazardous substance treatment facilities. This revision required in part as follows: Ifowners and operators are not the same entity, the operator shall be the permit applicant and responsible for development ofthe permit application and all accompanying materials, as long as the owner also signs the application and certifies

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• OFFICEOFTHEATTORNEYGENERAL

its ownership ofthe real property described in the application, and acknowledges its awareness ofthe contents ofthe application

. . . RCW 70.105.215. As a result ofthis statute, WAC 173-303-810(12) and (13) were modified. The operatormust certify the permit application in the same manner as stated at 40 CFR270.11. The ownermust sign a separate certification, consistentwith RCW 70.105.215. This difference in certification language does not, in myopinion, change the owner's responsibility for complying withhazardous waste laws and regUlations. The owner remains jointly and severally responsible in this regard. Recently enacted legislation in Washington makes this indisputable. RCW 70.1058.040 states that owners or operators ofa facility [defined at 70.1058.020(4)] are liable with respect to any hazardous substance which has been deposited, stored, disposed of, placed, or otherwise come to be located at a facility. Both owner and operator are strictly liable for releases or threatened releases ofhazardous substances from a facility, jointly and severally. Even prior to enactment ofch. 70.1058 (effective October 1987), ch. 70.105, the Hazardous Waste Managf::

...erit; statute imposed joint and several liability, regardless ofthe certification language. EPAwas also apparently ofthe opinion thatjoint permit signature was not a necessary prerequisite to enforcement against the owner, concluding that language of §§ 3004 and 3005 RCRA clearly bind the owner ofa facility in any event. EPAhas stated that the owner's signature is simply desirable from a practical and evidentiary standpoint. See, 47 FR 32039, JUly 23, 1982 (proposed rUlemaking). Second, the State certification language has no effect on the ability or obligation ofthe operator or the ownerto place notice of land disposal activities on real property records in the county where the property is located. Clearly, the owner is required to do so where there is a release ofa significant quantity of hazardous substances. See 70.1058.160. The owner and operator arejointly responsible for placement on deeds or other instruments oftitle notice ofthe pastuse of the property by other, specific regulations. See 40 CFR 265.119, incorporated by reference atWAC 173-303-400

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• OFFICEOFTHEATTORNEYGENERAL

(interim status) andWAC 173-303-610(10)(b) (final facility standards). Therefore, I conclude that while there may be differences in the permit certification language of 40 CFR 270.11 and WAC 173-303-810, they have no significant impact on responsibilities ofowners and operators under the law, and are substantially equivalent in this regard. V. Part 261, Subpart D LISTS OF HAZARDOUS WASTE Listing of spent pickle liquor from steel finishing operations[Federal Authority: 40 CFR 261.32, as amended May 28, 1986 [51 FR 19320) and Sept. 22, 1986 [51 FR 33612].] citation: Revision Checklist 26 WAC 173-303-9904 K062



# • VI. Availability of Information

- Public Disclosure: Remarks: In August 1986, the Attorney General provided certain certifications with respect to disclosure ofpublic records. These remarks update and modify the earlier certification. WAC 173-303-901, scheduled for adoption on March 15, 1988, requires the Department of Ecology to respond to requests for public disclosure ofdangerous waste records promptly, but in no event later than twenty (20) working days after the request. This response time provides a more specific response time than that stated in the Public Disclosure Law (ch. 42.17 RCW), which simply calls for a "prompt" response. RCW 42.17.320

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,CONCLUSION I trust this provides adequate analyses of state authority. KENNETH O. EIKENBERRY Attorney General 

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• KATHLEEN D. MIX Assistant Attorney General Office ofthe Attorney General Ecology Division, PV-ll Olympia, Washington 98504 (206) 459-6800

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