INTRODUCTION TO WASHINGTON STATE ENVIRONMENTAL LAWS

1. INTRODUCTION TO WASHINGTON STATE ENVIRONMENTAL LAWS MARY SUE WILSON Senior Assistant Attorney General WASHINGTON STATE ATTORNEY GENERAL’S OFFICE Ecology Division marysuew@atg.wa.gov

2. Three Types of State Environmental Laws • Those Implemented Primarily by State • Those Implemented Primarily at Local Level • Those With Responsibilities Shared Between State & Locals • All of these Laws Have Some Role for Both State and Locals

3. Environmental Laws Implemented Primarily by State • Water Pollution Control Act (WPCA), RCW ch. 90.48 • Oil and Hazardous Substance Spill Prevention & Response, RCW ch. 90.56 • Washington Clean Air Act (CAA), RCW ch. 70.94 • Hazardous Waste Management Act (HWMA), RCW ch. 70.105 •  Model Toxics Control Act (known as the state’s “cleanup law”), RCW ch. 70.105D

4. Environmental Laws Implemented Primarily at Local Level (still have some specified roles for state) • Shoreline Management Act (SMA), RCW ch. 90.58 • Growth Management Act (GMA), RCW ch. 36.70A

5. Environmental Laws With Shared Responsibilities • State Environmental Policy Act (SEPA), RCW 43.21C • Solid Waste Management Act, (SWMA) RCW 70.95

6. Environmental Laws Implemented Primarily by State • Water pollution; air pollution; hazardous waste management & cleanup of contaminated properties • All have federal law counterparts • Traditional approach aimed at businesses engaged in activity that produced pollution stream (e.g., pipe discharging polluted waste water; smoke stack emitting pollutants into the atmosphere; company collecting, storing, and disposing of others’ hazardous wastes)

7. Environmental Laws Implemented Primarily by State (cont.) • Today we focus on these traditional polluters PLUS many other activities that put pollution into our environment (e.g., air pollution from cars, regulation of stormwater runoff from cities, and construction sites)

8. Those State Laws With Federal Law Counterparts • Some federal laws mandate certain actions and state has option of assuming responsibility for implementing federal requirements (e.g., CWA/WPCA) • Some federal laws set floor and allow state to regulate more aggressively • Some federal laws focus on largest set of problems, let states decide how to address remainder (e.g., CERCLA/MTCA: cleanup of contaminated sites)

9. State Environmental Laws: Regulatory Tools • Administrative regulations • Technical Assistance (education) • Permits specifying requirements • Enforcement: corrective action orders, civil penalties • Criminal actions: criminal fines & jail time (nature of violation; offender’s history; harm)

10. Water Pollution Control Act (WPCA) • Unlawful to discharge into any “waters of the state” any matter that “causes or tends to cause pollution” • State sets water quality standards

11. WPCA (cont.) • State issues permits to dischargers specifying required controls and limits to meet standards • Permits • Federal and state waste discharge • Individual and general (source category)

12. Oil and Hazardous Substance Spill Preparation and Response • Law supports and complements federal oil spill laws, like Oil Pollution Act of 1990 (OPA) • State enacts rules addressing prevention and response

13. Oil Spills (cont.) Case Example: When may the state establish requirements governing operation of vessels that come into state waters in the interests of preventing and/or responding to oil spills? • Preemption (Supremacy Clause of U.S. Constitution) • Interstate Commerce Clause

14. Oil Spills - Case Example (cont.) • Tankers carrying oil travel between states and countries • The U.S. and every coastal state has interest in preventing oil spills and responding promptly when spill occurs

15. Oil Spills - Case Example (cont.) U.S. Constitution, Key Clauses • Necessary & Proper Clause – Congress given power to “make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States. . .” • Supremacy Clause – “This Constitution, and the Laws of the United States which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . .”

16. Oil Spills - Case Example (cont.) • Commerce Clause – Congress given power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” • Power Reserved to the States – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

17. Oil Spills - Case Example (cont.) • Preemption = balance of federal/state authority in a particular area of law. By operation of the Supremacy clause, federal law may prevent a state from enacting a law or regulation that conflicts with a federal law or rule.

18. Oil Spills - Case Example (cont.) Two U.S. Supreme Court cases out of Washington in oil spills area: • Ray v. Atlantic Ridgefield Corp. (1978) • U.S. v. Locke (a.k.a. Intertanko) (2000)

19. Oil Spills - Case Example (cont.) • Only federal government may regulate: design, construction, alteration, repair, maintenance, operation, equipment, personnel qualifications, and manning of tanker vessels. • States may be able to regulate vehicle trafficking issues, especially if regulation is connected to unique local geographic issue • Court conducts specific analysis to see if local regulation conflicts with Coast Guard regulation

20. Washington Clean Air Act (CAA) • Typical subjects of regulation: • Outdoor burning • Vehicles • Industrial Sources • Typical methods of regulation: • Permits • Enforcement orders • Penalties

21. CAA (cont.) • Burning • Agriculture • Woodstove • Campfires, other outdoor • Prohibited materials: never • Urban areas: never

22. CAA - Case Example “Constitutional Questions Surrounding Pollution Control Equipment” WAC 173-405-040(10): Operation and maintenance. At all times, including periods of abnormal operation and upset conditions, owners and operators shall, to the extent practicable, maintain and operate any affected facility, including associated air pollution control equipment, in a manner consistent with good air pollution control practice.

23. CAA - Case Example (cont.) WAC 173-405-040(10) (cont.) Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to ecology which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.

24. CAA - Case Example (cont.) • Longview Fibre power boilers emit particulate matter into air • “Scrubber” removes most of particulate matter before exhaust enters outside air • Manufacturer’s manual specified water level in scrubber • Large holes developed in scrubbers; not promptly repaired

25. CAA - Case Example (cont.) • Department fines Longview Fibre for violation of regulation requiring operation of pollution control equipment “in manner consistent with good air pollution control practice” • Longview Fibre argued that regulation was “unconstitutionally vague” • Due process requires government give notice of requirements

26. CAA - Case Example (cont.) Court of Appeals • Would persons of common intelligence have to guess about the regulation’s meaning or disagree as to its application? • Does not require “impossible specificity” i.e., general statements are permissible. • Here, large holes in scrubbers plus reducing water level below manufacturer’s specs not OK. • Regulation provided sufficient notice so not unconstitutionally vague.

27. Hazardous Waste Management Act (HWMA) • Covers facilities that generate, treat, store, or dispose hazardous waste • Goal is to manage hazards to prevent releases to environment, risks to people • Hazardous waste includes discarded substance that poses hazard to human health or environment because of: toxicity, corrosivity, explosive-nature, flammability, etc.

28. Model Toxics Control Act (known as the state’s “cleanup law”) • Clean up sites contaminated with hazardous substances • Law makes broad categories of persons responsible for cleanup • Owner/operator • Arranger/generator • Liability is strict; joint & several

29. Model Toxics Control Act (cont.) • State enacts regulations: • Specify process/standards for assessing site • Process/standards for selecting remedy • Standards for deciding when site is “clean” • State oversees cleanup at worst sites (~250/~1200) • Voluntary cleanup actions at other sites (~800+)

30. Shoreline Management Act (SMA) • State establishes guidelines • Local governments’ “shoreline master program” specifies local requirements implementing these guidelines • Local governments act first on most permit decisions • State approves or has “right of appeal” from local permit decisions

31. Growth Management Act (GMA) • Local governments develop comprehensive (comp) plans, development regulations, critical areas ordinances (CAOs) • Manage/plan for impacts of growth on: transportation, utilities, housing, economic development, historic preservation, open space & recreation, rural & agricultural areas, environmental resources • State may appeal local decision if does not comply with GMA

32. State Environmental Policy Act (SEPA) • Patterned after National Environmental Policy Act (NEPA) • Department of Ecology writes rules • All state governments implement rules • Environmental review is required for all major actions significantly affecting the environment • Purpose: inform decision-making about environmental impacts

33. SEPA (cont.) • Is environmental review required? • Statute/regulation exception? • Threshold determination: • Asks whether there are any probable, significant, adverse environmental impacts (SEPA checklist used to answer this question) • If yes, conduct full-scale Environmental Impact Statement (EIS) • If no, review is complete

34. Solid Waste Management • State establishes standards for solid waste handling and solid waste landfills • Cities and counties develop solid waste management plans • Local health department regulates landfills (issues permits specifying operation requirements).

35. Water Resources Law • Different than others previously discussed because not primarily a regulatory scheme • First comprehensive water resources codes date back to: • 1917 (Surface Water Code) • 1945 (Groundwater Code) • Based on principles of property law

36. Water Resources Law (cont.) • State’s roles include: • Issuing new water rights, make decisions on proposed changes to existing water rights • Establishing instream flows (designed to reserve enough water in streams to benefit instream needs, like fish survival)

37. Water Resources Law (cont.) • State roles (cont.) • Participating as party in litigation that confirms the nature, extent, and priority of water rights in a particular basin (e.g., the Yakima Basin surface water adjudication, a/k/a the Acquavella Adjudication) • Regulating water use when water right holder uses water inconsistent with right (e.g., uses more than specified quantity, uses more water than necessary for specified purpose: “waste”)

38. Water Resources Law (cont.) Basic Principles • Doctrine of prior appropriation (“first in time, first in right”) • Water right connected to purpose, location, quantity actually used • So long as continue to use, right exists into perpetuity

39. Water Resources Law (cont.) • Case Example: The Case of the Exempt Well • General Rule: water rights require permits from state • Exception: certain specified types of groundwater withdrawals do not require permits • Implication: other than not needing a permit, the specified groundwater withdrawals are still subject to the general principles of water law (e.g., quantity of right determined by amount put to beneficial use; cannot impair senior right holders)

40. Water Resources - Case Example (cont.) RCW 90.44.050 Excerpt: . . . EXCEPT, HOWEVER, That any withdrawal of public ground waters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section . . .

41. Water Resources - Case Example (cont.) • Rambling Brooks Estates = residential development that would include 20 lots • Each group of 6 lots planned to use single “exempt” well (5,000 gpd) • In combination, development will rely on 3 or 4 “exempt” wells • Is this permissible?

42. Water Resources - Case Example (cont.) • State Supreme Court said No • “. . . any withdrawal of public ground waters . . . for single or group domestic uses in an amount not exceeding five thousand gallons a day.” • A developer planning for a group use is limited to one 5,000 gpd exemption for project • Developer may not claim multiple single exemptions on behalf of each homeowner

43. New Initiatives by State in Environmental Area • Cleanup Puget Sound by 2020 • Climate Change • Reducing Toxics Threats • Making Environmental Mitigation Work