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# OFFICEOFTHE ATTORNEYGENERAL

CERTIFICATION OFTHE ATTORNEY GENERAL STATE OFWASHINGTON
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 our opinion as assistant attorneys general ofthe State ofWashington 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. 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. IDENTIFICATIONAND LISTING A. State regula_ions contain lists ofhazardous 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 CFR 261.32 and 261.33(f), as amended October 23, 1985 [50 FR 42936-43], Revision Checklist 18. [Federal Authority: RCRA § 3001(b).] Citations: WAC 173-303-9904 WAC 173-303-9903 WAC 173-303-9905 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



### KenEikenberry AttorneyGeneral

Templeof Justice, Olympia, Washington 98504·0521**~3**

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Certification ofThe Attorney General Page 2

II. DEFINITIONOF SOLIDWASTE A. State regulations define hazardous waste and impose management standards so as to control all the hazardous waste controlled under 40 CFRParts 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 indictecrin Revision Checklist 13. [Federal Authority: RCRA §§ 3001, 3004] Citation: Please refer to Revision Checklist 13, due to the length ofthe citations involved.

III. APPLICABILITY OF INTERIMSTATUS STANDARDS State regulations contain the following requirements regarding interim status standards as indicated in the designatedRevision Checklist: (1) Interim status standards apply to facilities identified in 40 CFR265.1(b), Revision Checklists 3 and 10. [Federal Authority: RCRA § 3004; 40 CFRPart 265 as amended November 22, 1983 andNovember 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 in40 CFRpart 265, subparts K, M, andN, Revision Checklist 15. [Federal Authority: RCRA §§ 3004; 40 CFR part 265 as amendedApril 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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Citations: RCW 42.17.310 RCW42.17.010(11) RCW43.21A.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. HearstCorp. 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 ofwhichwould violate personal privacy or vital governmental interests, can be deleted from the record. Hearstv. Hoppe; RCW 42.17.310(2). In re Rosier, 105 wn.2d 606, P.2d (1986). The act applies to extremely broad categories o--rrecords. 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. Hearstv. Hoppe. Thus, in general the same types of records, ifnot more, would be available to the public from the state as wouldbe available from EPA. Washington law does provide that whenever a party provides records or information to the departmentwhich relate to the processes of production unlque 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 ofwhether any justification or need for such records has been shownby the requestor. Citation: RCW 42.17.270 RCW 42.17.280 RCW 42.17.290 RCW 42.17.010s. 

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Certification ofThe Attorney General Page 4

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. RCW42.17.290. (3) Procedural requirements of the state disclosure act closelyparallel federal requirements. (a) Definition of record: The scope of records subject to state requests is as broad as the scope of records as definedby EPA (40 CFR2.100(b)). Citation: RCW42.17.020(26), (28). (b) Availability of records in absence of a request (40 CFR2.104(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: RCW42.17.250; .260 (c) Assistance to the requestor (40 CFR2.109(b)): The state agency must give the IIfullest assistance" to inquirers ofpublic records. Citation: RCW42.17.290 (d) Timeliness of response to requests for records (40 CFR 2.2112): Agencies are required to give lithe most timely possible actionll on requests for public records. citations: RCW42.17.290 RCW42.17.320 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: RCW42.17.310(4) RCW42.17.320 WAC 173-03-080

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### CertificationofThe AttorneyGeneral Page 5 (f) Judicial appeal procedures: state law provides agency actions are final for purposes of judicial review two days following denial ofinspection. 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: RCW42.17.320 RCW42.17.340 WAC 173-03-090 (g) Administrative appeal time period (40 CFR 2.117): An appeal of an initial denial of disclosure is deemed completewithintwo business days following denial ofinspection, and constitutes final agency action for purpose of judicial review. citations: RCW42.17.320 WAC 173-03-090 (h) Final agency action (5 U. S . C. 552 ( a)(6)(c): See discussion above. citation: RCW42.17.320 (i) 

### 2.116): JUdicial review of final agency action (40 CFR See discussion above.

citations: RCW42.17.320 RCW42.17.340



# ••• (j) Fees (40 CFR2.120(d»: State agencies maycharge for copying records, but not for inspection. There is no provision for waiveroffees. citation: RCW42.17.300 (k) Attorney fees and expenses (5 U.S.C. 552(a)(4)(E): See discussion above. citation: RCW42.17.340(3)

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Certification of The Attorney General Page 6

Conclusion:



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. ' 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 ofAugust, 1986.

KATHLEEN D. MIX Assistant Attorney General