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R~' Supplementa~ certification of the Attorney General '-~

January 23, 1987

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(August 20, 1986 Authorization Application)

Introduction

On August 20, 1986, the state submitted an application for

authorization for all non-HSWA federal program amendments

between January 1, 1985 and June 30, 1985. EPA provided

comments on such application on November 5, 1986, requesting

further action by the state agency and supplemental certification from the Attorney General. This statement is provided

1n response to that request and addresses only those items

which indicated a need for action by the Attorney General.

1. Confidential Business Information

a. Definition

RCW 43.21A.160 addresses the definition of and

procedure for certification of business records as

confidential. It states:

Whenever any records or other

information furnished under the

authority of this chapter to the

director, the department, or any

division of the department, relate

to the processes of production unique

to the owner or operator thereof, . or may affect adversely the competitive position of such owner or operator if released to the public or to
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a competitor, the owner or operator

of such process or production may

so certify, and request that such

information or records be made available only for the confidential use

of the director, the department, or

the appropriate division of the

department. The director shall give'

consideration to the request, and if

such action would not be detrimental

to the pUblic interest and is otherwise within accord with the policies

and purposes of this chapter, may

grant the same. (Emphasis added).

To be certified as confidential a business record

must be demonstrated to be either related to

"processes of production unique to the owner or

operator," or such that disclosure to the public

or a competitor "may affect adversely the

competitive position of such owner or operator."

The director of Ecology may grant confidential

certification upon a determination that one or

both of these tests are met and that such

certification would not be detrimental to the

public interest.

Although it does not use the term directly, RCW

43.21A.160 essentially sets out a process for

protecting "trade secrets. "I It protects

Black's Law Dictionary, 5th Ed. 1979 defines trade secret

as follows:

A formula, pattern, device or compilation of. information which is used in one's business and

which gives one opportunity to obtain advantage

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production processes unique to the owner, which

processes allow the owner to gain a competitive

advantage over those who do not know the process.

It provides nQ greater protection. The definitions,

exemptions, and protections of 2 CFR 2.201, which

also reference 5 U.S.C. 552(b)(4) and 18 U.S.C.

1905, not only appear, on their face, to give confidentiality protection to broader classes of

records (e.g. styles of work, statistical data,

expenditures and other financial information), they

define business confidentiality only in broad" terms,

to "include the concept of trade secrecy" see 40

tection to limited trade secret information. It

1S, therefore, my opinion that the state, through •

RCW 43.21A.160, does not define confidential busiCFR 2. 201 (e ) . It is clear the state extends pro-

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ness information any more broadly than 40 CFR Part 2.

b. Timing of Request; Release of Information

other than as set forth above, no procedural

requirements exist defining precisely when a claim

over competitors who do not know or use Lt. Rimes

v. Club Corp. of America, Tex.Civ.App., 542 S.W.2d

909, 913. A plan or process, tool, mechanism, or

compound known only to its owner and those of his

employees to whom it is necessary to confide it.

A secret formula or process not patented, but

known only to certain individuals using it in

compounding some article of trade having a

commercial value.

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of confidentiality of business information must be

made. This could be addressed in administratively

adopted rules either pursuant to RCW 43.21A.080,

the general rule making authority of the Department, or the Public Disclosure Law, or both. However, it is implicit in RCW 43.21A.160 that the

request for confidentiality must be submitted with

the records. If it is not, the Department has the

authority and indeed, the duty to treat such records

just as it would any other public record. See

ch. 42.17 RCW. In the absence of a request for

certification as confidential at the time of submission to the agency, the records would be disclosable

under ch . 42.17 RCW. No notice to the affected

business would be required under that Act. Again,

in my opinion 43.21A.160 puts the burden on the

owner or operator to assert a 'trade secret' exemption from disclosure upon submission of business

records. The failure to do so renders such records

disclosable under the public disclosure law, without

notice to the affected business.

Availability of Records to the Public

The exemptions from public disclosure are contained at

RCW 42.17.310. The context in which these exemptions

may be used is limited and has been discussed in the

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original certification. Essentially, the existence of

an exemption does not guarantee nondisclosure, other

tests must also be met. See RCW 42.17.310(2). A

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comparison of the nine exempt categories of 5 u. S. c.

552 (b) and those stated at RCW 42.17.310 leads to the

conclusion that the same types of information are available to the public from the state as from EPA. This is

particularly true given the narrow construction of state

exemptions and state court's reliance on FOIA judicial

interpretations. See Hearst v. Hoppe, 90 Wn.2d 123, 580

P.2d 249 (1978). While the state's exemption list is

longer, several of the exemptions are to very specific

subject areas, not generally relevant to RCRA (e. g.

library records). A brief review of the exemptions

demonstrates this conclusion.

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42.17.310

(a) Personal info - students,

patients, welfare

recipients, prisoners,

etc.

(b) Personal info - employees,

elected officials, etc. - to extent personal

privacy violated

(c) certain limited taxpayer

information

(d) Intelligence, investigative

information

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5 usc 552

See, 552(b)(6)

See, 552(b)(6)

No known similar

exemption, but not

relevant to RCRA

program; a very

limited and specific

exemption

See 552(b)(7)
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(e) Information revealing

identity of persons who

complain to investigative/

law enforcement agencies

(f) Test questions/exam data

used for licenses, employment or academic exams

('g) Real estate appraisals

made by or for any agency,

for a limited period of

time only

(h) Valuable formula, designs,

research data, etc.,

if public loss would occur

(i) Preliminary drafts notes,

intra-agency memos, in

limited circumstances

(j) Records relevant to a

controversy, but not

available under pretrial

discovery rules

(k) Records, maps, etc.

identifying archeological

sites

(1) Library records revealing

identity of users

(m) Ferry system and highway

construction financial

info preliminary to bids

(n) Railroad company contracts

(0) Certain financial info

related to export services

(p) Financial disclosures of

vocational schools

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See 552(b)(7)

Not relevant to RCRA;

no similar exemption

unless through S52(b)(3)

Not relevant to RCRA.

No similar exemption,

unless through 552(b)(3).

No directly similar

exemption. May be

within 552(b)(5)

See, 552(b)(5)

See, 552(b)(5)

See, 552(b)(9)

Not relevant to RCRA

Not relevant to RCRA.

No directly similar

exemption, unless

552(b)(6).

Presumably, 552(b)(3)

but generally not

relevant to RCRA

Not relevant to RCRA.

No similar exemption

unless 552(b)(3).

Not relevant to RCRA.

No similar exemption,

unless 552(b)(3).

Not relevant to RCRA.

No similar exemption,

unless 552(b)(3).
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One must conclude that the general scheme of exemptions

is much the same, Washington having several very specific and limited exemptions which mayor may not exist

outside 5 U.S.C. 552, but which are generally notrelevant in any fashion to RCRA. I have not searched the

Uni ted States Code to find other statutes which may

exempt from disclosure particular types of federal documents and come within the scope of the 5 U.S.C. 552(b)(3)

exemption.

Thus, I conclude, again, that the same types of records

would generally be available to the public from the

state, as would be available from EPA, particularly

given the strong public policy in Washington favoring

broad disclosure, and judicial decisions favoring the

same.

Chapter 42.17 RCW: Overall Intent:

In making comments on the original certification, EPA

quotes from that portion of RCW 42.17.010 (11), which

states in part an intent to promote disclosure of information IIrespecting the financing of political campaigns

and lobbying and the financial affairs of elected officials and candi dat.es . II EPA then questions whether the

public disclosure law has application to "uneLeot.ed

government officialsll and IInonpolitical permit proceedings. II One only need have read one clause further in

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42.17.010(11) to have part of this question answered

to have perused the index to the Act and the earlier

Attorney General certification in the most cursory manner

to have the remainder of this question answer~d.

RCW 42.17.010(11) states 1n full:

(11) That, mindful of the right of

individuals to privacy and of the desirability of the efficient administration

of government, full access to information

concerning the conduct of government on

every level must be assured as a fundamental and necessary precondition to the

sound governance of a free society.

The provisions of this chapter

shall be liberally construed to promote

complete disclosure of all information

respecting the financing of political

campaigns and lobbying, and the

financial affairs of elected officials

and candidates, and full access to public

records so as to assure continuing public

confidence of fa1rness of elections and

governmentaltErocesses, and so as to

assure that e pUblic interest will be

fully protected. In promoting such

complete disclosure, however, this

chapter shall be enforced so as to

insure that the information disclosed

will not be misused for arbitrary and

capricious purposes and to insure that

all persons reporting under this chapter

will be protected from harassment and

unfounded allegations based on

information they have freely disclosed.

(Emphasis added.)

In short, those portions of ch. 42.17 RCW which deal

with public records mandate full agency disclosure of

all records relating to the conduct of government or

performance of any governmental or proprietary

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function. See, RCW 42.17.020(26) for the definition of

public record. The Act is applicable to all actions and

proceedings of the state of Washington and its various

agencies. Any request for records in the context of

any·proceeding must be honored, unless the records are

. not discoverable under the rules of pretrial discovery

(i.e. privileged). While the Act also governs campaign

financing, lobbyist reporting and public officials'

financial affairs, it is the governing statute for

disclosure of all government records. See RCW 42.17.250

through 42.17.340.

Conclusion

• It is my firm op1n1on that all records in the possession of

the state of Washington and its various agencies are

generally available to the public in substantially the same

manner as federal agency records are available.

Certification of confidential business information 1S a

narrow 'trade secret' exception and given the broad policy

to disclose, will be narrowly construed as well.

Dated this z{, of January, 1987.

KATHLEEN D. MIX

Assistant Attorney General

Department of Ecology

State of Washington

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CERTIFICATION OF THE ATTORNEY GENERAL

STATE OF WASHINGTON

I. Introduction

On July 3, 1986 the Environmental Protection Agency (EPA)

published notice that in order to obtain and maintain

authorization, states must have statutory authority to regulate

the hazardous waste components of radioactive mixed wastes. EPA , "

defines mixed wastes as those which contain hazardous components

subject to RCRA and radioactive wastes subject to the Atomic

Energy Act (AEA) . It is my opinion as an assistant attorney

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general of the State of Washington that Washington currently has

the necessary statuto~y authority to regulate these wastes, the

legislature having appropriately amended ch. 70.105 in 1984. My

analysis follows.

II. Statutory Authority

In May, 1983 EPA provided Ecology comments regarding the

comparability of Washington's statutes to RCRA' for early

identification of areas where state statutes may not provide

sufficient authority for final authorization (please see

attachment A, letter dated May 23, 1983). EPA suggested that

legislative changes be sought in the 1984 session of the state

legislature. In these comments EPA noted that chapter 70.105 RCW

excluded radioactive wastes from its jurisdiction altogether, see

RCW 70.105.110(1), while the exclusion of radioactive materials

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Atomic Energy Act, 1.e., source, special nuclear and byproduct

materials. EPA stated, liEPA's concern is whether the state has

authority, equivalent to RCRA, to regulate hazardous wastes which

are also radioactive. II EPA went on to note that chapter 80.50

RCW, which deals with the siting of energy facilities, was

inadequate in this regard for a number ·of reasons.

During the 1984 session of the legislature chapter 70.105 RCW

was amended, apparently to address these comments, as well as

other matters not directly relevant to this issue. Specifically,

the legislature amended RCW 70.105.145 as indicated below (please

see attachment B, ESB 4607).

Notwithstanding any other provision of

chapter 70.105 RCW, the Department of Ecology

is empowered to participate fully in and is

empowered to administer all aspects of the

program of the federal Resource Conservation

and Recovery Act, as it exists on the effective date of this 1984 amendatory act, (42

u. S. C. § 6901 et seq.), contemplated for

participation and administration by a state

under that act.

Through this amendatory language the legislature stated its

intention that in spite of any other provisions of the hazardous

waste statute which might suggest otherwise, Ecology was to have

the power to administer every portion of RCRA which the federal

government deemed the states should administer. It is to be

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presumed that the legislature would not engage in a meaningless

act and intended to achieve a goal with this language. It must

also be presumed that the legis1at~re was aware that the scope of

exclusion from regulation under RCRA was limited to IIsource,

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special nuclear and byproduct material, II regulated under the

Atomic Energy Act, while state law then provided a broad exclusion

from regulation for all radioactive materials or wastes. Clearly,

the legislature desired that the full scope of the federal RCRA

program be capable of administration by the state. By enacting a

comprehensive power to administer RCRA, the legislature limited or

narrowed any other portion or section of ch. 70.105 RCW which was

inconsistent with the powers provided 1n RCRA. This must be read , .

to inclUde a limitation on the radioactive waste or material exclusion of RCW 70.105.110. Any other interpretation would render the

legislature's actions meaningless. Thus, by the addition of the

"notwithstanding" and all II aspectsII language of RCW 70.105.145,

the legislature gave to the Department of Ecology the power to

regulate all wastes which would be regulated under RCRA. As EPA

now anticipates granting authorization to regulate mixed wastes,

the broad additional powers granted by the 1984 amendments to

70.105.145 come squarely into play, giving Washington proper and

adequate authority to regulate such wastes.

This conclusion 1S further supported not only by the

background leading to the amendment of RCW 70.105.145, but also by

the simultaneous 1984 amendment to RCW 70.105.110, which contained

the original exclusion from regulation of all radioactive wastes

and materials, as discussed above. This section was amended as

follows:

(1) with the exception of subsection (2),

nothing in this chapter shall apply to any

radioactive waste or radioactive material.

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(2) Nothing in this chapter shall alter,

amend, or supersede the provisions of chapter

80.50 RCW, except that, notwithstanding any

provision of chapter 80.50 RCW, regulation of

dangerous wastes associated with energy facilities from generation to disposal shall be

solely by the department pursuant to chaeter

70.105 RCW. In the implementation of sa1d

section, the department shall consult and

cooperate with the ener9X facility site

evaluation council and, 1n order to reduce

duplication of effort and to provide necessary

coordination of monitoring and on-site inspection pro~rams at energy facility sites, any on-site 1nspection by the department that may

be required for the purpose of this chapter

shall be eerforrned pursuant to an interagency coordinat10n agreement with the council.

The addition of the language in Subsection (2) of this statute

again states an overall intent to narrow the radioactive waste or

material exclusion and ensure that all hazardous wastes

associated with energy facilities are regulated. While the statute

is somewhat ambiguous as to whether it reaches "energy

facilitiesII generally or only those addressed by ch . 80.50 RCW

(which excludes energy facilities operated for defense purposes),

it clearly evidences a drawing back from the original exclusion.

construction of ch . 70.105 RCW as a whole then leads to

the conclusion that adequate authority exists allowing Washington

State to regulate mixed wastes. The narrowing of RCW 70.105.110(1),

read in conjunction with the amendment to RCW 70.105.145, giving

Ecology all powers to administer the RCRA program, demonstrates a

clear intent that Ecology regulate all dangerous wastes contemplated by RCRA and 70.105 RCW, whether they have radioactive com-

• ponents or not. Even if one concludes there is some conflict

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between RCW 70.105.110 and .145 as they apply to radioactive and

dangerous wastes (which I do not think there is), the later amendment to RCW 70.105.145 must prevail over the earlier requirements

of RCW 70.105.110. Thus, again I reach the conclusion that adequate state authority currently exists to regulate radioactive

mixed wastes.

Conclusion . '.

I trust the foregoing provides you a satisfactory analysis

of state statutory authority sufficient to merit authorization

over mixed wastes.

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Dated the day of

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