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Ken Eikenberry

ATTORNEY GENERAL OF WASHINGTON

7t!l FLOOR, HIGHWAYS·L1CENSES BUILDING • OLYMPIA. WASHINGTON 98504·8071

CERTIFICATION OF THE ATTORNEY GENERAL

STATE OF WASHINGTON

INTRODUCTION

In accordance with Section 3006(b) of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and

Solid Waste Amendments of 1984 (42 U.S.C. 6901 et seq.), and 40

CFR 271, it is my opinion as an Assistant Attorney General of the

State of Washington that the laws of the State of Washington

provide adequate authority to carry out the revised program set

forth in the revised "Program Description" submitted by the

Washington State Department of Ecology.

The State Department of Ecology 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 CFR 260.10.

Citation: WAC 173-303-040(108)

173-303-040(109)

173-303-040(111)

173-303-040(110)

II. Part 264, Subpart G and

Part 265, Subpart G

CLOSURE AND POST CLOSURE

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 of other specified units

or facilities which require post closure care as indicated

in Revisions Checklist 24 and 27.

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[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

FINANCIAL REQUIREMENTS

State regulations require compliance with financial assurance requirements as set forth in Revision Checklist 24 and

Revision Checklist 27.

Additionally, state law allows companies that treat, store

or dispose of hazardous waste to demonstrate alternative

coverage for liability insurance in the form of a 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 of the

Washington Business Corporation Act, ch, 23A.08 RCW,

sets forth the general powers of business 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 ho 1de r , any affiliated or

unafflilated Individual, domestic or

fore: l~ corporation, partnership, association, : 'J I nt v e nt.ur-e or trust) if such

qua r a r.t c e 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 of directors 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 of benefit to the

guarantor corporation.

RCW 2JA.OS.020(9)

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OFFICE OF THE ATTORNEY GENERAL

Pursuant to this power, a corporation may contract or

promise to guarantee payment for the default or other

obligation of another corporation or person, so long as

the Board of Directors of the 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, in Washington, 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 of Masters, 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 of certain 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 of a 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:

If owners and operators are not the same

entity, the operator shall be the permit

applicant and responsible for development

of the permit application and all accompanying materials, as long as the owner

also signs the application and certifies

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OFFICE OF THE ATTORNEY GENERAL

its ownership of the real property

described in the application, and

acknowledges its awareness of the

contents of the application . . .

RCW 70.105.215.

As a result of this statute, WAC 173-303-810(12) and

(13) were modified. The operator must certify the

permit application in the same manner as stated at 40

CFR 270.11. The owner must sign a separate certification, consistent with RCW 70.105.215.

This difference in certification language does not, in

my opinion, change the owner's responsibility for

complying with hazardous 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 of a 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 of hazardous substances from a

facility, jointly and severally. Even prior to enactment of ch. 70.1058 (effective October 1987), ch.

70.105, the Hazardous Waste Managf::...erit; statute imposed

joint and several liability, regardless of the certification language. EPA was also apparently of the opinion

that joint permit signature was not a necessary prerequisite to enforcement against the owner, concluding that

language of §§ 3004 and 3005 RCRA clearly bind the owner

of a facility in any event. EPA has 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 of the operator or the

owner to 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 of a significant quantity of

hazardous substances. See 70.1058.160. The owner and

operator are jointly responsible for placement on deeds

or other instruments of title notice of the past use of

the property by other, specific regulations. See 40 CFR

265.119, incorporated by reference at WAC 173-303-400

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OFFICE OF THE ATTORNEY GENERAL

(interim status) and WAC 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 of owners 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

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VI. Availability of Information -

Public Disclosure:

Remarks: In August 1986, the Attorney General provided

certain certifications with respect to disclosure of public

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 of dangerous 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

",/ : ( >" ..:. -i- . . (j . " { ;;, . 1..- _

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KATHLEEN D. MIX

Assistant Attorney General

Office of the Attorney General

Ecology Division, PV-ll

Olympia, Washington 98504

(206) 459-6800

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