COUNTIES ‑- DISTRICTS ‑- HEALTH ‑- REGULATION OF SOLID WASTE DISPOSAL.
Identification of unit of government of Spokane county with responsibility under chapter 70.95 for issuance of permit for operation of a sanitary landfill; applicability of site permit system provided for by RCW 70.95.170 to both "inert waste matter" and "garbage and other similar waste matters; agency required to prepare environmental impact statement with respect to sanitary landfill in Spokane county; authority of county engineer to grant or deny an application for permit to operate a sanitary landfill under RCW 70.95.170.
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April 23, 1975
Honorable A. J. Pardini
State Representative, 6th District
Olympia, Washington 98504
Cite as: AGLO 1975 No. 43
Dear Representative Pardini:
By letter previously acknowledged you requested the opinion of this office on four questions which we have paraphrased as follows:
(1) What entity of government in Spokane county is responsible under chapter 70.95 RCW for issuing a permit authorizing the operation of a sanitary landfill?
(2) Does the disposal site permit system of RCW 70.95.170 apply to both "inert waste matter" and "garbage and other similar waste matter?"
(3) Assuming a detailed statement is required to be prepared by RCW 43.21C.020 prior to the making of a decision on an application for a permit to operate a sanitary landfill operation, what agency is required to prepare such a statement?
(4) What authority, if any, does a county engineer, or his subordinates, including the solid waste engineer, have to grant or deny an application for a permit to operate a sanitary landfill operation submitted pursuant to RCW 70.95.170?
We answer your second question in the affirmative and your remaining questions as set forth in our analysis.
In 1969 the state legislature enacted a comprehensive solid waste management act. Chapter 134, Laws of 1969. Now codified in chapter 70.95 RCW, this statute assigned
". . . primary responsibility for adequate solid waste handling to local government, reserving to the state, however, those functions necessary to assure effective programs throughout the state;" RCW 70.95.020.
[[Orig. Op. Page 2]] The approach of the act is one of staged implementation. The law first authorizes the state department of ecology to adopt "minimum functional standards for solid waste handling, as it deems appropriate."1/ RCW 70.95.060. The act then mandates each county of the state, in cooperation with the various cities in the county,2/ to prepare a "coordinated, comprehensive solid waste management plan." RCW 70.95.080.
In relation thereto the department of ecology is directed by RCW 70.95.080 to establish a "schedule for the development of the comprehensive plans for solid waste management;"3/ and upon adoption by a county of a solid waste management plan, the plan is required to be submitted to the [[Orig. Op. Page 3]] department "for technical review and approval." RCW 70.95.100.
RCW 70.95.160 then establishes a permit system. This section provides, in part, that:
"Each county, or any city, or jurisdictional board of health shall adopt regulations or ordinances governing solid waste handling implementing the comprehensive solid waste management plan covering storage, collection, transportation, treatment, utilization, processing and final disposal including the issuance of permits. . . ."
After the adoption of these regulations or ordinances, RCW 70.95.170 provides that:
". . . no solid waste disposal site or disposal site facilities shall be maintained, established, substantially altered, expanded, or improved until the county, city, or other person operating such site has obtained a permit from the jurisdictional health department pursuant to the provisions of RCW 70.95.180."
With this background we turn to your four inquiries.
Your first question asks what agency of government in Spokane county is responsible, under chapter 70.95 RCW, for issuing a permit authorizing the operation of a sanitary landfill?
RCW 70.95.180 requires a person proposing to operate a sanitary landfill site or facility first to obtain a permit from the "jurisdictional health department" before initiating the activity. This governmental body is defined in RCW 70.95.030(7) to mean a "city, county, county-city or district public health department."
Under various parts of Title 70 RCW, including among others, chapters 70.05, 70.08 and 70.46 RCW, counties and cities are required to establish health departments in one form or another. In Spokane county, you have informed us that the health responsibilities of the county are implemented through a county health district established pursuant to county ordinances. Based on the foregoing provisions of chapter 70.95 RCW, it is our view that the county health district [[Orig. Op. Page 4]] is the "jurisdictional health department" which is responsible, under RCW 70.95.160, for issuance of permits for operation of all solid waste sites and facilities, including sanitary landfill operations.
You next inquire whether the permit system of RCW 70.95.170 applies to both "inert waste matter" and "garbage and other similar waste matter."4/
The permit system of RCW 70.95.170 and RCW 70.95.180 relates to the operation of "solid waste disposal site or disposal site facilities." (Emphasis supplied.) "Solid waste" is defined in RCW 70.95.030(9) as:
". . . all putrescible and nonputrescible solid and semisolid wastes including garbage, rubbish, ashes, industrial wastes, swill, demolition and construction wastes, abandoned vehicles or parts thereof, and discarded commodities."
This broad definition covers all types of wastes, whether putrescible or nonputrescible.5/ It is clear that "garbage" falls within the definition of solid waste of RCW 70.95.030(9) for that word is expressly mentioned in the statute. It is equally clear that "inert" wastes, as you defined them, are "nonputrescible wastes" and thus "solid wastes" within the meaning of RCW 70.95.030(9).
With this background in mind, it is our opinion that the permit system of RCW 70.95.160 applies to waste disposal sites and disposal site facilities handling both "garbage and similar materials" and "inert wastes."
[[Orig. Op. Page 5]] Question (3):
You next ask whether, assuming a detailed statement is required to be prepared by RCW 43.21C.030 (a section of the State Environmental Policy Act of 1971) prior to a decision by a jurisdictional health department on an application for a permit scheduled pursuant to RCW 70.95.160, it is the jurisdictional health department's responsibility to prepare the statement?
This question involves an interpretation of that portion of RCW 43.21C.030 which provides that to the "fullest extent possible . . . all branches of government of this state, including state agencies, municipal and public corporations, and counties shall:
"(a) Utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;
"(b) Identify and develop methods and procedures, in consultation with the department of ecology and the ecological commission, which will insure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations;
"(c) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:
"(i) the environmental impact of the proposed action;
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;
"(iii) alternatives to the proposed action;
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;
[[Orig. Op. Page 6]] "(d) Prior to making any detailed statement, the responsible official shall consult with and obtain the comments of any public agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate federal, province, state, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the governor, the department of ecology, the ecological commission, and the public, and shall accompany the proposal through the existing agency review processes; . . ." (Emphasis supplied.)
Two points are worthy of note with regard to these statutory provisions. First, they direct all branches of government, both state and local, to prepare a detailed statement (normally called an "environmental impact statement or e.i.s.) prior to making a decision on a "major action significantly affecting the quality of the environment." In Eastlake Com. Coun. v. Roanoke Assoc., 82 Wn.2d 475, 513 P.2d 36 (1973), our state supreme court divided the types of decisions of governmental bodies involving "major actions . . ." into two categories. At page 489 the court wrote:
"Governmental agencies essentially affect the environment in two ways. First, they may, as part of their regulatory functions, grant permits or licenses to private parties who in turn develop projects affecting the environment. [Citations omitted.] Second, the governmental agencies may initiate and develop projects of their own, an occurrence most common to federal agencies. Under either agency function, its activities are the 'action' covered by SEPA though in the first example the actual project is undertaken by a nongovernmental entity. However, regardless of the function involved, SEPA may apply."
The permit system of RCW 70.95.160 et seq., falls within the first category described by the court. Therefore decisions made in relation to applications for permits filed in accordance with RCW 90.48.170 are potentially "major actions . . ." which require detailed statements to be completed prior to final decisions on permit applications.
[[Orig. Op. Page 7]] Secondly, we note that RCW 43.21C.030 requires the "responsible official" to prepare the detailed statement. That official is clearly an official of a government agency.6/
The issue in the context of this inquiry is whether the permit issuing authority under RCW 70.95.170 (i.e., the jurisdictional health department) is always the agency responsible for the ultimate preparation of an impact statement in relation to a ruling on a permit application which constitutes a "major action . . ." Stated another way, is the permit issuing authority of RCW 70.95.170 always the "responsible official" who is required to have a detailed statement prepared when one is mandated for preparation by the terms of the state Environmental Policy Act of 1971?
The answer to this question depends upon the identity and status of the "person" seeking the permit to operate a solid waste disposal site or facility from the jurisdictional health department because the permit system of RCW 70.95.160 not only applies to projects of private "persons" but to those of public bodies such as counties and cities as well. RCW 18.104.22.168/
Recently this office opined, in AGLO 1974 No. 106 [[to Keith Angier, Director, Department of General Administration on December 30, 1974 an Informal Opinion, AIR-74606]], copy enclosed, with respect to the responsibility for preparing a detailed statement for a project proposed for construction by a state agency which required an approval from another governmental unit prior to initiation thereof. We said that this responsibility rested with the proposing agency and not with the other government unit to which the proposer had submitted an application for a permit. In reaching this conclusion we said, at page 9:
[[Orig. Op. Page 8]] "Your question, concerning as it does state projects which are contingent in some respects upon action by municipal governments, involves consideration of the effect of SEPA upon major governmental actions requiring multiple approvals or the direct participation of several state agencies or subdivisions. While this question is primarily concerned with a circumstance involving two governmental entities (a state agency which seeks to construct some project and a county or city which is called upon to issue a building permit for the state project), our analysis is equally applicable to cases concerning projects which involve more than two governmental bodies.
"Most certainly, there is nothing in SEPA which purports to excuse a given governmental agency from compliance with the environmental impact statement requirements of that act with respect to its own building projects simply because some other agency, later on down the line, may also have to prepare such a statement in connection with its licensing or permit issuing functions. Thus, our answer to the initial part of your final question is that if a state building project constitutes a 'major action significantly affecting the quality of the environment,' the state will continue, as before, to be required to prepare an environmental impact statement for that project even though, where construction in commenced after January 1, 1975, the county or city in which it is situated may also have to prepare one because it is called upon, under chapter 96, supra, to issue a building permit with respect thereto.
"However, this is not to say that in every such case, a second impact statement will be required of the permit-issuing municipality. In fact, in many if not most instances a requirement that such a municipality must prepare a second statement could constitute the sort of 'bureaucratic redundancy' which was rejected by the Washington supreme court in Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973), where the court stated:
[[Orig. Op. Page 9]] "`We emphasize, however, that not all discretionary actions trigger SEPA provisions. Not only must the action significantly affect the environment, but it must be nonduplicative. Therefore, if environmental issues have previously been considered or no new information or developments have intervened since the last 'major action', a new or revised impact statement is not necessary. SEPA does not mandate bureaucratic redundancy but only that the heretofore ignored environmental considerations become part of normal decision making on major actions.' (pp. 764-65.)"
We then went on to explain:
"That the avoidance of wasteful redundancy in multiple‑agency construction projects is consistent with the requirements of SEPA is shown further by a recent amendment to SEPA, chapter 179, Laws of 1974, Ex. Sess. In the statement of purpose of this act, the legislature declared that:
"'The purpose of this 1974 amendatory act is to establish methods and means of providing for full implementation of chapter 43.12C RCW (the state environmental policy act of 1971) in a manner which reduces duplicative and wasteful practices, establishes effective and uniform procedures, encourages public involvement, and promotes certainty with respect to the requirements of the act.' (Section 1, chapter 179, Laws of 1974, Ex. Sess.)
"Moreover, we also note that the very question which you have raised was within the contemplation of the legislature, as indicated by its mandate to the newly-established council on environmental policy by § 6(1)(g) of the act, to promulgate SEPA guidelines which will include, inter alia,
"'Guidelines for determining the obligations and powers under . . . [SEPA] of two or more branches of government involved in [[Orig. Op. Page 10]] the same project significantly affecting the quality of the environment.'8/
"Until such time as that agency clarifies or otherwise determines this issue, we believe that the so-called 'lead-agency' concept for multiple agency projects is consistent with SEPA. . ."9/
The reasoning of that opinion, with its reliance on the quoted portion of Loveless v. Yantis, supra, is equally applicable to your present inquiry. If a state or local governmental unit submits to the jurisdictional health department an application for a permit to operate a solid waste disposal site or facility, that department, absent the changed conditions described in the quotation from Yantis,10/ is not required to prepare a detailed statement but may, in [[Orig. Op. Page 11]] lieu thereof, make use of the statement prepared by the state or local governmental unit in relation to its own decision to operate a solid waste site or facility. If, however, the "person" submitting an application to the jurisdictional health department is not a state or local governmental unit, then the responsibility for preparing a detailed statement required by the state Environmental Policy Act of 1971 will lie with jurisdictional health department.
You lastly have inquired whether the county engineer, or one of his subordinates, has the authority to grant or deny an application for a permit to operate a sanitary landfill operation pursuant to RCW 70.95.170.
As indicated in response to question (2), the authority to administer the permit system of RCW 70.95.170 is vested solely in the "jurisdictional health department" which in Spokane county is the health district. In light of this conclusion the county engineer, and his subordinates, have no powers under RCW 70.95.170 to rule upon permit applications in any respect.
We trust the foregoing will be of assistance.
Very truly yours,
CHARLES B. ROE, JR.
*** FOOTNOTES ***
1/RCW 70.95.030 defines "minimum functional standards" as "criteria for solid waste handling expressed in terms of expected performance of solid waste handling functions." These standards, as adopted by the department of ecology, are contained in chapter 173-301 WAC. For the purpose of providing consultation to the department of ecology, RCW 70.95.040 established a "solid waste advisory committee." This committee was required, by RCW 70.95.070, to review the standards developed by the department "prior to adoption."
2/Cities are directed, by RCW 70.95.080, to coordinate their efforts with counties by one of the following actions:
"(1) Prepare and deliver to the county auditor of the county in which it is located its plan for its own solid waste management for integration into the comprehensive county plan; or
"(2) Enter into an agreement with the county pursuant to which the city shall participate in preparing a joint city-county plan for solid waste management; or
"(3) Authorize the county to prepare a plan for the city's solid waste management for inclusion in the comprehensive county plan."
3/The mandatory contents of a solid waste management plan are listed in RCW 70.95.090.
4/By "inert waste matter," we understand you to mean inactive or neutral solid waste such as concrete, dirt and rock.
5/Putrescible is defined in Webster's Third New International Dictionary, page 1850, (1966) as "liable to become putrid." "Putrid" is defined at page 1851 of the same dictionary as "rotten."
6/We have not directed our attention to the issue of the extent a "responsible official" may rely on nongovernmental input in the preparation of a detailed statement. For a discussion of this issue see, Roe and Lean, The State Environmental Policy Act of 1971 and its 1973 Amendments, 49 Wash. Law Rev. 509, 521 (1974), and cases cited therein.
7/A "person" is defined in RCW 70.95.030(8) as an "individual, firm, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever."
8/The council on environmental policy has not promulgated any guidelines at the date of this writing although a first round "draft" guidelines has been the subject of a number of public hearings.
9/For a comprehensive discussion of the "lead-agency" concept under the National Environmental Policy Act of 1969, a statute almost identical with the state Environmental Act of 1971, see, Anderson, NEPA in the Courts, 197-200 (1973).
10/In AGLO 1974 No. 106 [[to Keith Angier, Director, Department of General Administration on December 30, 1974 an Informal Opinion, AIR-74606]]we also wrote at pages 10-11:
". . .in the normal situation, the proper entity to take the lead on SEPA compliance by filing an environmental impact statement should be the project-originating state agency, and that a second environmental impact statement need not be filed by the building-permit granting municipality unless either the project for which the permit is sought has changed significantly in nature or scope from the time the state agency filed its environmental impact statement or there is new and significant information about the environmental impact of the project not previously considered in the environmental impact statement filed by the state agency. . . ." (Emphasis supplied.)