I • 

# e·

Ms. AndreaBeattyRiniker Director Washington stateDepartment of Ecology

. MS PV-ll Olympia, WA 98504

Re: Dangerous Waste Regulatory Program --Final Authorization Addendum to Attorney General's statement

DearMs. Riniker: 

# .' The Attorney Ge11eral'.s Office.supplied your predecessor, Mr. Donald Moos, with an "Attorney General's statement" describing the authority 

### c;>! the Washington state Department .of Ecology to operate a dangerous waste regulatory program that is equivalent to the federal Resource Conservation and Recovery Act of 1976 (RCRA) as amended, 42 U.S.C. 6901 et See, Attorney**Gener~l's** statement, dated June 25, 1984. That "Attorney General's .state.ment"'was supplied to thenDirector Moos incident to Washington State's application for "final authorization" to'operate the Department of Ecology's dangerous waste regulatory program in this state in lieu of the federal regulatoX'y program administered by the Environmental Protection Agency (EPA). I understand,that the state's application for "final authorization" still has not been approved or denied; this addendum to the "Attorney General's statement'" is written to note developments in the law that have occurred since the original statementwas prepared, and to respond to various comments from EPA.

Court Cases

Two reported appellate court cases should be noted here. State ofWashington,v. Environmental Protection Agency, 752 F.2d 14,65 (9th Cir. 1985) and Wilson, et a1. v. Key Tronic Corp. and Spokane County, 40 Wn. App. 802 (1985). Washington**v'~** EPA modifies a portion of the "Attorney General's 'Statement" supplied to the Department ofEcology. Wilson v. Keytronic supports portions of it. 

# • Washingtonv. EPA was an appeal from EPA's Regional Administrator's decision to grant "interim authorization"**~~~sD\R§~** I(("ll1:.ihl

### ".11X"rl)'AttorneyGeneral 

# I

# K\

I • •• , ,_ I' ::11" 0**10~r-** - TempleofJustice.Olympia.Washington98504 ,':_**L..~** ,J,.i\.,JOFFICEOF '1'Hi:: A J J**UKl~l:.** r \.Ir..!**~c.n.ru...** 

## • 

# • " Ms. Andrea BeattyRiniker July 17, 1985 Page 2

but to exclude "Indian landsn because the state lacked authority to regulate hazardous waste on Indian lands

.. The federal Ninth· Circuit Court of Appeals upheld the Regional Administrator's decision, saying that,
[T]he EPA Regional Administrator properly refused to approve the proposed state program b.ecause RCRA does not authorize the states to 'regulate Indians on.Indian lands. 752 F.2d at 1467-1468.

. The court did not decide whether the state had authority to regulate hazardous waste management by non-Indians on Indian lands.

We do not decide the question"whetherWashington is empowered.'to create a program reaching into Indian countrywhen that reach is limited to non-Indians • • • Washington has made it clear that it did not present such a program to EPA ••• [W]e will con­ 

# • 'sider only the program that Washington did**p~esent.** We do not address the legality of other programs. that'the state might have proposed. 752 F.2d at 1468.

Giventhat Washington statutes and Department of Ecology regulations apply to all persons ae a matter of state law, I would expect EPA's**~egional** Administrator to consider the state'.s application for final authorization to present a requlatoryprogram covering all**haza~ous w~ste**  managementby non-Indians on and off Indian lands. The state's authority ·to implement this program is described adequately in this office's "Attorney General's statement" and in the amicus brief filed by the state of California inWashington v. EPA.

The Department of Ecology's authority to define "extremely hazardous**wast~n** was challenged inWilson v. Keytronic. The
case was brought to recove'r damages for contamination of drinking water wells caused by illegal disposal of 1-1-1 trichloroethane sludge at the Colbert landfill in

1 .The Regional Administrator's decision on interim

.authorization did not make any issue of the state's

authority to regulate Indian activities off of "Indian lands." 

# •Ms. Andrea**Bea~~y** K1n1Ker I .. \July 17, 1985

I' ,'Page 3 

# • Spokane County. The trial court instructed the jury that the waste sludge was extremely hazardous waste as a matter of law, based on the**c~iteria** in**Depa~tment** of Ecology regulations. On**app~al,** the defendants argued that the**Dep~rtment** of Ecology had misinterpreted its statutory authority, and that the pertinent regulations were invalid. The·defendants argued thatwaste mustbe both toxic and persistentbefore it could be ·designated lIextremely hazardous. II The Court of Appeals rejected this· arguDlent and held the Department of Ecology couldproperly define extremely hazardous waste based
on the toxicity orpersistence of the waste.

1985 Legislation

The 1985 session of the Washington State Legislature enacted SSHB 975 (Ch. 448 Laws of 1985) which directs that a permit issued by the Department of Ecology to a hazardous waste treatment,. $torage or disposal facility preempts all other state or local**jur~sdiction$** which wou:l.d otherwise have 2 regulatory, siting, or approval power over the "facility." While SSHB 975 primarily directed the Department ofEcology to be the**so~e** regulator of hazardous waste facilities, the legislature also amended the definitions of "disposal site" and "dispose or disposal" ·to make clear that those terms 

# f 

# • apply to managemint of**~.** IIdangerous" and "extremely hazardous" waste

.

2 "Facility" is defined to include land, structures, and improvements used for."recycling" as well as treating, storing, or disposing of hazardous waste. EPA'S staff's comments··on Wa$hington law have evinced continued doubt
as to the Department ofEcology's authority to regulate practiees**defin~d** as dangerous waste "recycling." Inmy opinion, the legislature has authorized the Department of Ecology to adopt. waste recycling regulations by authorizing full participation and administration of all programs of**RC~** contemplated for state administration. See,**~,** RCW 70.105.145. The 1985·legislation by defin1ng "facility" ·to include dangerous waste "recycling" has gone still further.

3 This amendment responds to one comment from EPA'S review team. SSHB 975 takes effect July 28, 1985. With that exception, all the statutes and regulations referred to in the "Attorney General's statement," and in this addendum, are·in**effec~** at this time

. 

# •j • OFFICEOFTHEATTORNEYGENERAL 

# • Ms. Andrea BeattyRiniker July 17, 1985 Page 4

EPA Comments

The Department of Ecology'.s application for "final authorization," and a draft of that document, was reviewed and conunented upon by EPA staff.

.This letter is written, in part, because the.Department of Ecology program staff requested a response from this office to some of EPA's comments. Authority to regulate generators

- EPA requested a statement 6f the state's basis to regulate hazardous waste generators. The state's authority is located at RCW 70.105.130, ·70.105.145, and 70.105A.060(4).



# • Authority to establishpermit requirements EPA 'requested

-that the state's·authori.ty to establish regulations which have procedures to modify, revoke, reissue, and terminate permits be described. The authority to adopt these regulations is inRCW 70.105­ .130, 70.105.145, and 70.105A.060(4), and SSHB 10(2)

. Authority of the Washington state Patrol

- EPA requested that the effect of ch. 46.48 RCW, which authorizes the Washington state Patrol to adopt regulations concerning transportation of hazardous materials, be analyzed with respect to its effect on the state's RCRA program.
The Washington state Patrol is an independent agency vested with its authority.by statutes unrelated to the Department of Ecology. The state Patrol's program of hazardous materials transport regulation should not conflict with the Department of Ecology's regulations; in any event, the Department of Ecology has authority to enforce its regulations, through imposition of civil penalties, independent of the state Patrol. Regulation of solidwaste generated athazardous waste treatment, storage or disposal facilities EPA requested clarification of WAC 173-303-082. That section of the Department of Ecology's regulations provides, in part, that "residues" from management of listed hazardous wastes shall be considered hazardous waste. This provision is necessary to establish a state regulatory program that is "equivalent" to EPA's pro­ 

# •I Ms. Andrea**Bea~~y** K1D1xer

I. .July 17, 1985 • Page 5



### .. gram;4 

### tbis regulation would thus appear to be authorized by RCW 70.105.145 and 70.10SA.060(4). EPA should contact the Department of Ecology directly ifalterations to language of WAC 173-303-082 are. 

# j'.

necessary. Authority to define solid waste

- EPA requested clarification of the**Depar~ent** of Ecology's authority to define IIsolid waste." EPA's question is whether the de'finitionof IIsolid waste" in'chapter 70.95 RCW, pertaining to Solid waste Management, serves to limit the Department of Ecology's abilityunder ch. 70.105 RCW to define IIsolid.waste". for purposes of dangerous waste regulation. This qUestion is answered in the negative.



# • Accepted rules of statutory construction provide that wpile all acts relating to the same subject matter should be construed together, they also must be harmonized, if not actually in conflict, such that all are given effect. To,apply these rules, note initially that the Department of ,Ecology .has .authority to define hazardous waste as is necessary to administer

.such programs under RCRA·as are contemplated for state administration. The Department of Ecology needs to define IIhazardous wastell as a subset of "solidwaste" to complywith EPA's state program requirements

. Chapter 70.95 RCW established a regulatory framework for "solid wastell independently of the dangerous waste program. The definition of· "solid waste" at RCW 70.95.030(9) which appears to relate to the same subject matter

-- "solid waste"

-- is limited by the language which opens that section, i.e., RCW 70.95.030 states that

4 EPA's comment letter refers to the comparable section of EPA regulations as 1140 CFR Part 261.3(6) (2)(i)

. II There is no paragraph in 40 CFR·Part 261 with that number; the correct citation appears tobe 40 CFR Part 261(c)(2)(i).

5 Note that a citation to the source of the Department of Ecology's authority ·was provided, with the "Attorney Generalis statement," to EPA on the first page of EPA's form "state Legislation Checklist.1I 

# •

# •• Ms. Andrea BeattyRiniker 'July 17, 1985 (Page 6

As used in this chapter, unless the context indicates otherwise

... (9) IISolidWaste"
means.

. (Emphasis added.) Chapter.70.95 RCW was enacted six years before laws specially concerning dangerous waste were on the books. The 

### "dangerous waste" and "solid waste" regulatory systems are not necessarily related; "solid waste" is defined in the state dangerous waste rules onlybecause**~PA** 

### chose to take that approach to defining dangerous waste. The Department of Ecology's rules adopted the
same approach in order to be lIequivalent."

In conclusion, it·appears that the legislature broadly intended 

### the Department of Ecology, by regulation if necessary, to provide "protection from hazardous waste." Wilsonv. xeytronic,. 40 ·Wn. 

### App. at 808. The legis­ lature de·fiIied "'solid .waste" at an earlier time, expressly provided that that definitien be used in a**diffe~ent** 

### chapter .from 'the hazardous waste statutes for

. 

### a ·diffetent program, and has left no evidence of any intent to v.mit hazardous waste regulation with that definition.

Publicparticipation in enforcement

- The Department of EcolP9Y, to obti;lin interim authorization under RCRA, agreednot to oppose a request for intervention in civil enforcement proceedings brought under the dangerous waste statutes. This assurance was required by EPA regulations. This assurance shouldbe adequate for EPA insofar as Department of,Ecology-initiated enforcement is concerned. Department of Ecology enforcement includes civil penalties 

## and court cases brought in the
name ·of the Department ofEcology. For 

### those cases the Attorney General's Office assigns a lawyer to represent the department.

6 

### SSHB 975 suggests that the legislature understands that solid waste and hazardous waste programs operate independently. Section 16 of SSHB 975 amended RCW 70.95.080, Which requires that local governments submit comprehensive solid waste management plans, such that RCW 70.95.080 now states that those plans need not include a hazardous waste element

. 

# •Ms. Andrea Beatty Riniker

.July 17, 1985 

# r

1 ,.Page 7 

# I 

# • Authority to withhold enforcement sensitive information ­ EPA requested that the Department of Ecology agree to language protecting "enforcement sensitive information"
as part of astate/EPA Memorandum of Agreement.

.The draft memorandum provided that "Enforcement sensitive

.information will notbe released without written consent ·of the agency generating the information." See, draft MemorandUm ofAgreement, page 9.

--­ 1he Department of Ecology's application for interim and for final authorizations informed EPA that the Department ofEcology is subject·to the state's Public Disclosure Act, ch. 42.17 RCW

.. That Act requires that "public records" be available for inspection and copying. IIpublic records" include practically any documents obtainedby state agencies. There are narrow exceptions to the requirement to disclose public records, for example, Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, ,and state. agencies vested with the responsibility .to discipline members of any 

# • 'profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any persons right to privacy.

The Department of Ecology and EPA both compile specific investigate ·records and can act as investigative or law enforcE!,ment agencies.

. Cf. Ashley v. Washington state Public Disclosure CommisSIon,l6 'Wn. App. 830, 834 (1977) (Public Disclosure Commission is- an "investiga­

.tivell agency withinmeaning of RCW 42.17.310).

A "public record" falling into the category of exception noted above is exempt from public disclosure. state agencies do not have authority to modify the exemptions in the statute, nor does the Department of Ecology have the ability to promise to withhold public records from inspection other than as provided by the exceptions in the statute. JUdicial+eview is available to any person 'who is denied access to a requested public record, and should the court find against the state agency withholding the record, the agency will be obliged to pay for the requesting party's attorney's fees and a $25 per day penalty

. 

# •. Ms. Andrea BeattyRiniker**"~uly** 17, 1985 Page 8

The draft Memorandum of Agreement should be made consistent 

### with ch. 42.17 RCW.

I trust that this letter willbe of some assistance to you. Very truly yours,
Kenneth

### o. Eikenberry Attorney General



# C/{iift}**1£oz~1f:wa~** Charles K.

## b~uthwaite A$sistantAttorney General (206)**459~61SS** CKD:lh



# • r



# •