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OFFICE OF THE

ATTORNEY GENERAL

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 seg.), and 40 CFR 271, it is our opinion as assistant

attorneys 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 implem~nting RCRA and adopting rules thereunder,

at RCW 70.105.130. The specific authori ties 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. IDENTIFICATION AND LISTING

A. State regulations contain lists of hazardous wastes

which encompass all wastes controlled under the following

federal regUlations as indicated in the designated Revision

Checklists:

1. TDI, DNT and TDA wastes, 40

261.33 (f), as amended October 23, 1985

Revision Checklist 18.

[Federal Authority: RCRA § 3001(b).]

Citations: WAC 173-303-9904

WAC 173-303-9903

WAC 173-303-9905

CFR 261.32 and

[50 FR 42936-43],

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2. Spent solvents, 40 CFR 261.31, as amended

December 31, 1985 [50 FR 533515-20], Revision Checklist 20.

[Federal Authority: RCRA § 3001(b).]

Citations: WAC 173-303-9904

WAC 173-303-082

Ken Eikenberry Attorney General

Temple of Justice, Olympia, Washington 98504-0521

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OFFICE OF THE ATTORNEY GENERAL

Certification of The Attorney General

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II. DEFINITION OF SOLID WASTE

A. State regulations define hazardous waste and

impose management standards so as to control all the

hazardous waste controlled under 40 CFR Parts 261, 264, 265

and 266 as amended January 4, 1985 [50 FR 614-669],

April 11, 1985 [50 FR 14216-20], and AUguS~O, 1985 [50 FR

33541-43] as indicteCfin Revision Checklist 13.

[Federal Authority: RCRA §§ 3001, 3004]

citation: Please refer to Revision Checklist 13,

due to the length of the citations

involved.

III. APPLICABILITY OF INTERIM STATUS STANDARDS

State regulations contain the following requirements

regarding interim status standards as indicated in the

designated Revision Checklist:

(1) Interim status standards apply to facilities

identified in 40 CFR 265.1(b), Revision Checklists 3 and 10 .

[Federal Authority: RCRA § 3004; 40 CFR Part 265 as amended

November 22, 1983 and November 21, 1984].

Citations: WAC 173-303-400(1)

WAC 173-303-400(2)

WAC 173-303-400(2)(a)

(2) Operating and special requirements for surface

impoundments, land treatment, and landfills, identified in 40

CFR part 265, subparts K, M, and N, Revision Checklist 15.

[Federal Authority: RCRA §§ 3004; 40 CFR part 265 as

amended April 23, 1985]

Citations: WAC 173-303-045

WAC 173-303-400(3)

IV. AVAILABILITY OF INFORMATION

State statutes provide that:

(1) All records are available to the public unless

they are exempt from disclosure requirements of state law,

in substantially the same manner and to the degree as EPA

makes information available (5 U.S.C. 552).
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OFFICE OF THE ATfORNEY GENERAL

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citations: RCW 42.17.310

RCW 42.17.010(11)

RCW 43.21A.160

Remarks: The Washington public disclosure act closely

parallels the federal Freedom of Information Act (FOIA), 5

U.S.C. § 552, and establishes a philosophy of full agency

disclosure unless a specific statutory exemption exists.

Hearst Corp. v. Hoppe, 90 Wn. 2d 123, 580 P. 2d 249 (1978).

The statutory exemptions are narrowly construed and are

inapplicable to the extent that information, the disclosure

of which would violate personal privacy or vital governmental

interests, can be deleted from the record. Hearst v. Hoppe;

RCW 42.17.310(2). In re Rosier, 105 Wn.2d 606, P.2d

(1986). The act applies to extremely broad categories o~

records. See RCW 42.17.020(26), (28). The exemptions under

Washington law are contained at RCW 42.17.310 and closely

parallel the exemptions contained at 5 U.S.C. § 552. Indeed,

Washington courts look to judicial interpretations of the

FOIA to construe the state act. Hearst v. Hoppe. Thus, in

general the same types of records, if not more, would be

available to the public from the state as would be available

from EPA .

Washington law does provide that whenever a party

provides records or information to the department which

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 a

competitor,

the'owner can so certify and request confidential use. RCW

43. 21A .160. This definition appears narrower than its

federal counterpart at 40 CFR § 2.201. The statute implies

the certification must be provided at the time the records

are furnished. It is within agency discretion to grant or

deny the certification request. RCW 43.21A.160.

(2) All nonexempt records are available to the public

upon request regardless of whether any justification or need

for such records has been shown by the requestor.

Citation: RCW 42.17.270

RCW 42.17.280

RCW 42.17.290

RCW 42.17.010
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OFFICE OF THE ATTORNEY GENERAL

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Remarks: The Washington public disclosure act is a

strongly worded mandate for broad disclosure of· public

records. It requires public records be available to any

person asking to see or copy a particular record. Hearst

Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). RCW

42.17.010; .270. While agencies may adopt reasonable rules

for access to records, such rules must provide for fullest

assistance to inquiries and the most timely possible action

on request. RCW 42.17.290.

(3) Procedural requirements of the state disclosure

act closely parallel federal requirements.

(a) Definition of record: The scope of records

sub j ect to state requests is as broad as the scope of

records as defined by EPA (40 CFR 2.100(b»).

Citation: RCW 42.17.020(26), (28).

(b) Availability of records in absence of a request

(40 CFR 2.104(b): Each state agency has a duty to publish

agency organization and procedures and make an index of

specific public records available to the public .

Citation: RCW 42.17.250; .260

(c) Assistance to the requestor (40 CFR 2.109(b)): The

state agency must give the "fullest assistance" to inquirers

of public records.

Citation: RCW 42.17.290

(d) Timeliness of response to requests for records (40

CFR 2.2112): Agencies are required to give "the most timely

possible action" on requests for public records.

Citations: RCW 42.17.290

RCW 42.17.320

WAC 173-03-060

(e) Providing basis for denial of requests and appeal

procedures (40 CFR 2.113 (f) . and 2.114 (a» : State agency

denials of requests must be accompanied by written reasons

for such denial, including the specific exemption authorizing

nondisclosure.

Citations: RCW 42.17.310(4)

RCW 42.17.320

WAC 173-03-080
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OFFICE OF THE ATfORNEY GENERAL

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(f) Judicial appeal procedures: state law provides

agency actions are final for purposes of judicial review

two days following denial of inspection. No time constraints

are imposed by statute for seeking judicial review. Any

person who prevails against an agency in action to seek

public records is awarded all costs, including attorneys fees

and a discretionary $25/day award for each day of improper

nondisclosure.

citations: RCW 42.17.320

RCW 42.17.340

WAC 173-03-090

(g) Administrative appeal time period (40 CFR 2.117):

An appeal of an initial denial of disclosure is deemed

complete within two business days following denial of inspection, and constitutes final agency action for purpose of

judicial review.

Citations: RCW 42.17.320

WAC 173-03-090

(h) Final agency action (5 U.S.C. 552(a)(6)(c): See

discussion above .

citation: RCW 42.17.320

(i)

2.116):

Judicial review· 0 f final agency action (40 CFR

See discussion above.

Citations: RCW 42.17.320

RCW 42.17.340

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(j) Fees (40 CFR 2.120(d»): State agencies may charge

for copying records, but not for inspection. There is no

provision for waiver of fees.

citation: RCW 42.17.300

(k) Attorney fees and expenses (5 U.S.C.

552(a)(4)(E): See discussion above.

citation: RCW 42.17.340(3)
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Conclusion:

We trust the foregoing analysis of state law and

regulations provides you the information needed for

continued state authorization under the RCRA program.

Dated this \~ day of August, 1986.

KATHLEEN D. MIX

Assistant Attorney General