I • 

e·
 

Ms. Andrea Beatty Riniker
 

Director
 

Washington state Department of
 

Ecology .
 

MS PV-ll
 

Olympia, WA 98504
 

Re:	 Dangerous Waste Regulatory Program --Final 

Authorization Addendum to Attorney General's 

statement 

Dear	 Ms. 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 statement was prepared, and to respond to various comments from EPA. 

Court Cases 

Two reported appellate court cases should be noted here. 

State of Washington ,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 of Ecology. Wilson v. 

Keytronic supports portions of it. 

• Washington v. EPA was an appeal from EPA's Regional Administrator's decision to grant "interim authorization" ~~~sD\R§~

I(("ll1:.ihl".11 X"rl)' Attorney General IK\ I • ••	 , ,_

I' ::11" 0 10~r- - Temple of Justice. Olympia. Washington 98504	 ,':_ L..~ ,J ,.i\.,J 
OFFICE OF '1'Hi:: A J J UKl~l:. r \.Ir..! ~c.n.ru...

• 

• 

" Ms. Andrea Beatty Riniker
 

July 17, 1985
 

Page 2
 

but to exclude "Indian lands n 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" whether Washington is empowered.' to create a program 

reaching into Indian country when 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. 

Given	 that 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 management by 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 in Washington v. EPA. 

The Department of Ecology's authority to define "extremely hazardous wast~n was challenged in Wilson 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 that waste must be both toxic and persistent before it 

could be ·designated lIextremely hazardous. II The Court of 

Appeals rejected this· arguDlent and held the Department of 

Ecology could properly define extremely hazardous waste based 

on the toxicity or persistence 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 of Ecology 

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 ~. II dangerous " 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 of Ecology's authority to regulate 

practiees defin~d as dangerous waste "recycling." In my 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 • 

OFFICE OF THE ATTORNEY GENERAL 

• 

Ms. Andrea Beatty Riniker 

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 establish permit 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 in RCW 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 solid waste generated at hazardous 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 II solid 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 ability under 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 "solid waste" to 

comply with 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 to be 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

General is statement," to EPA on the first page of EPA's 

form "state Legislation Checklist. 1I 

•
 
•• 

Ms. Andrea Beatty Riniker 

'July 17, 1985 

(Page 6 

As used in this chapter, unless the context 

indicates otherwise ... (9) IISolid Waste" 

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 only because ~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." 

Wilson v. 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. 

Public participation in enforcement - The Department of 

EcolP9Y, to obti;lin interim authorization under RCRA, 

agreed not 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 should be 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 of Ecology. 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 not be released without written consent
 

·of the agency generating the information." See, draft
 

MemorandUm of Agreement, page 9. --­

1he Department of Ecology's application for interim and 

for final authorizations informed EPA that the Department of Ecology 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 

obtained by 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 within meaning 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 Beatty Riniker "~uly 17, 1985 

Page 8 

	 The draft Memorandum of Agreement should be made consistent 

with ch. 42.17 RCW. 

I trust that this letter will	 be of some assistance to you. 

Very truly yours, 

Kenneth o. Eikenberry 

Attorney General 

C/{iift} 1£oz~1f:wa~ Charles K. b~uthwaite A$sistant Attorney General 

(206) 459~61SS
 

CKD:lh
 

•	 r
 

•