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AGO 1983 No. 23 - November 02, 1983
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- POLLUTION ‑- RELATIONSHIP BETWEEN FEDERAL AND WASTE DISCHARGE PERMITS

(1) The Department of Ecology may not concur in the proposed issuance of a wate discharge permit by the United States Environmental Protection Agency under § 301(h) of the Federal Clean Water Act if the proposed federal permit contains effluent quality limitations which require less waste treatment than is required under state law.

 (2) A municipality is required to obtain a waste discharge permit from the Department of Ecology under RCW 90.48.162 prior to discharge of its sewerage wastes into marine waters of the state even though the municipality already holds a waste discharge permit issued by the Environmental Protection Agency under § 301(h) of the Federal Clean Water Act which was concurred in by the Department of Ecology under that provision.

 (3) The Department of Ecology is not precluded by federal law from including in a state permit such waste treatment requirements, mandated by state law, as are more stringent than those contained in a permit which was issued by the Environmental Protection Agency without express state concurrence.

 (4) While state law does not expressly prohibit a municipality from discharging wastes from its sewerage system into Puget Sound, or other marine waters, without providing secondary treatment, all waste proposed for discharge into such waters must be provided with "all known, available, and reasonable methods of treatment" prior to being discharged into those waters‑-regardless of the quality of the water.

                                                               - - - - - - - - - - - - - 

                                                                November 2, 1983

Honorable Donald W. Moos
Director
Department of Ecology
Olympia, WA 98504

Cite as:  AGO 1983 No. 23                                                                                                                

 Dear Sir:

             By letter previously acknowledged, you requested our opinion on several questions relating to our state's water pollution  [[Orig. Op. Page 2]] control laws.  We paraphrase those questions as follows:

             (1) May the Department of Ecology concur in the proposed issuance of a waste discharge permit by the United States Environmental Protection Agency, as authorized by § 301(h) of the Federal Clean Water Act, if the permit contains effluent quality limitations which require less waste treatment than is required under state law?

             (2) Is a municipality required to obtain a waste discharge permit from the Department of Ecology under RCW 90.48.162 prior to discharge of its sewerage wastes into marine waters of the state where the municipality already holds a waste discharge permit issued by the Environmental Protection Agency under § 301(h) of the Federal Clean Water Act which was concurred in by the Department of Ecology under that provision?

             (3) Is the Department of Ecology precluded by federal law from including in the state permit any waste treatment requirements, mandated by state law, that are more stringent than those contained in a permit which was issued by the Environmental Protection Agency without express state concurrence?

             (4) Under state law may a municipality discharge wastes from its sewerage system into Puget Sound, or other marine waters, without providing secondary treatment?

             We answer questions (1) and (3) in the negative, question (2) in the affirmative and question (4) in the manner set forth in our analysis.

                                                                      ANALYSIS

             Washington enacted its basic water pollution control laws in 1945.  See chapter 216, Laws of 1945, now codified in chapter 90.48 RCW.  Those laws were then supplemented from time to time over the years until, by 1972, they covered a wide range of water pollution control strategies ranging from the establishment of both "receiving water" and effluent treatment standards1/ and the operation of a waste discharge permit system2/ to the administration of a water  [[Orig. Op. Page 3]] quality planning program.3/

             At the federal level, Congress enacted a comprehensive and detailed water pollution control act in November, 1972.4/ Pub. L. No. 92-500, 86 Stat. 816.  Train v. City of New York, 420 U.S. 35, 37, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975);City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 340, 101 S.Ct. 1784, 68 L.Ed.2d 114, 141 (1981).  That act contained many of the pollution control strategies also embodied in Washington's program.5/

             In terms of federal-state relations, the first section of the "Federal Water Pollution Control Act Amendments of 1972" sets forth the following policy:

             "(b) It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act. . . ." (33 U.S.C.A. § 1251(b))

             Consistent with this policy, many regulatory elements of the program of the 1972 federal act contained mechanisms that allow a state, such as Washington, to become their primary implementor.6/   SeeDistrict of Columbia v. Schramm, 631 F.2d 854, 859, 203 U.S. App. D.C. 272 (1980).

              [[Orig. Op. Page 4]]

            The policy of the State of Washington, with regard to participation in the various federal program elements, is reflected by actions of the legislature taken over the past decade.  Within six months after the passage of the aforementioned federal legislation of 1972, Washington enacted § 4, chapter 155, Laws of 1973.  That section, codified as RCW 90.48.260, provided in pertinent part:

             "The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the Federal Water Pollution Control Act as amended and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. . . ."

             That section has been amended on two occasions.  In 1979 the words "as amended" were inserted after "Federal Water Pollution Control Act."  Sec. 1, chapter 267, Laws of 1979, 1st Ex. Sess.  Thereafter, in 1983, the words "Federal Water Pollution Control Act" were replaced with "federal clean water act."  Sec. 1, chapter 270, Laws of 1983, 1st Ex. Sess.7/   In both instances those amendments to RCW 90.48.260 were enacted after Congress made major amendments to companion federal water pollution control laws.  See Pub. L. 95-217, 91 Stat. 1566, and Pub. L. 97-117, 95 Stat. 1623.

             The import of this sequence of state legislative responses to federal statutory changes is clear.  The State of Washington desired, consistent with the aforementioned federal policy of giving the states "primary responsibilities" in the administration of water pollution control programs, to carry on its longstanding role of dominance in the administration of water pollution control efforts within its boundaries.8/   Thus, the Department of Ecology is  [[Orig. Op. Page 5]] today authorized, by this continuing process of amendments to RCW 90.48.260, to participate in all programs contemplated for state participation in the act which Congress now refers to as the "Clean Water Act."9/

             Your questions relate, for the most part, to the interplay between the Department of Ecology's broad powers‑-pertaining to both its administration of water pollution control programs established by state law and its participation in Federal Clean Water Act programs‑-and the United States Environmental Protection Agency's administration of § 301(h) of the Federal Clean Water Act (33 U.S.C.A. § 1311(h)).   That provision of the federal law contains a mechanism whereby a municipality, with the "concurrence" of the state, may obtain approval of less stringent methods of treatment of wastes discharged into marine waters than are normally required in an "NPDES" waste discharge permit issued under § 402 of the federal act.10/   Natural Resources Defense Council v. Environmental Protection Agency, 656 F.2d 768, 773 (D.C. Cir. 1981).  Section 301(h) provides in pertinent part:

             "The Administrator, with the concurrence of the State, may issue a permit under section 402 which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant in an existing discharge from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that . . ."

 each of seven conclusions can be reached regarding treatment, the receiving waters and effects upon other discharges.11/

              [[Orig. Op. Page 6]]

            We now proceed to your questions.

 Question (1):

 You first ask:

             May the Department of Ecology concur in the proposed issuance of a waste discharge permit by the United States Environmental Protection Agency, as authorized by § 301(h) of the Federal Clean Water Act, if the permit contains effluent quality limitations which require less  [[Orig. Op. Page 7]] waste treatment than is required under state law?

             We answer this question in the negative.

             We note initially that, as previously described, the Department of Ecology is broadly empowered by RCW 90.48.260 to participate in all of the programs of the Federal Clean Water Act contemplated for state participation.  Undoubtedly, the "concurrence" role which is contemplated for a state's participation by § 301(h) falls abstractly within that broad grant of authority.

             Your question, however, deals with the criteria which the Department of Ecology is to apply in determining whether to concur with a proposal that is submitted to it by the Environmental Protection Agency to issue an NPDES waste discharge permit in accordance with § 301(h).

             That section, as earlier set forth,12/ contains no criteria to guide a state in developing such a response.13/   In this ambiguous statutory condition the Environmental Protection Agency, as primary administrator of the section, has adopted regulations implementing and interpreting § 301(h).  First to be noted is 40 C.F.R. § 125.59(g)(2) which provides:

             "No section 301(h) modified permit shall be issued until the appropriate State certification/concurrence is granted or waived pursuant to § 124.54; or if the State denies certification/concurrence pursuant to § 124.54."  (Emphasis supplied)

             40 C.F.R. § 124.54, referred to in that first noted regulation, then provides:

             "(a) When an application for a permit incorporating a variance request under CWA section 301(h) is submitted to a State, the appropriate State official shall either:

             "(1) Deny the request for the CWA section 301(h) variance  [[Orig. Op. Page 8]] (and so notify the applicant and EPA) and, if the State is an approved NPDES State and the permit is due for reissuance, process the permit application under normal procedures; or

             "(2) Forward a certification meeting the requirements of § 124.53 to the Regional Administrator.

             "(b) When EPA issues a tentative decision on the request for a variance under CWA section 301(h), and no certification has been received under paragraph (a) of this section, the Regional Administrator shall forward the tentative decision to the State in accordance with § 124.53(b) specifying a reasonable time for State certification and concurrence.  If the State fails to deny or grant certification and concurrence under paragraph (a) of this section within such reasonable time, certification shall be waived and the State shall be deemed to have concurred in the issuance of a CWA section 301(h) variance.

             "(c) Any certification provided by a State under paragraph (a)(2) of this section shall constitute the State's concurrence (as required by section 301(h)) in the issuance of the permit incorporating a section 301(h) variance subject to any conditions specified therein by the State.  CWA section 301(h) certification and concurrence under this section will not be forwarded to the State by EPA for recertification after the permit issuance process;States must specify any conditions required by State law, including water quality standards, in the initial certification."  (Emphasis supplied)

             It is a general rule that regulations interpreting an ambiguous statute, when adopted by the agency with primary responsibility for administering the statute, are entitled to considerable weight.  Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).  Thus, the interpretative regulations of the Environmental Protection agency, as the primary administrator of the Clean Water Act, are of import.  Environmental Protection Agency v. National Crushed Stone Association, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980).  See alsoNational Wildlife Federation v. Gorsuch, 693 F.2d 156, 166 (D.C. Cir. 1982).  The regulations of that agency interpreting § 301(h)‑-primarily 40 C.F.R. § 124.54(c)‑-provide that a state may concur in the issuance of an NPDES permit proposed for issuance by  [[Orig. Op. Page 9]] the Environmental Protection Agency only if that document includes ". . . conditions required by state law, including water quality standards. . . ."

             It thus follows, in response to your first question, that the Department of Ecology's concurrence with a permit proposed for issuance by the Environmental Protection Agency under § 301(h) is not to be given unless all requirements of our state's water pollution control laws are included in the permit.  We, therefore, answer that question, as above stated, in the negative.

             Question (2):

             You next ask:

             Is a municipality required to obtain a waste discharge permit from the Department of Ecology under RCW 90.48.162 prior to discharge of its sewerage wastes into marine waters of the state where the municipality already holds a waste discharge permit issued by the Environmental Protection Agency under § 301(h) of the Federal Clean Water Act which was concurred in by the Department of Ecology under that provision?

             We answer this question in the affirmative.

             RCW 90.48.162 provides:

            "Any county or any municipal or public corporation operating or proposing to operate a sewerage system, including any system which collects only domestic sewerage, which results in the disposal of waste material into the waters of the state shall procure a permit from the department of ecology before so disposing of such materials.  This section is intended to extend the permit system of RCW 90.48.160 to counties and municipal or public corporations and the provisions of RCW 90.48.170 through 90.48.210 and 90.52.040 shall be applicable to the permit requirement imposed under this section."

             This section covers all municipalities which discharge wastes into public waters.  Each such municipality is required to obtain a waste discharge permit from the Department of Ecology.  There are no exemptions contained in RCW 90.48.162.  Likewise, there are no exemptions in any other section of chapter 90.48 RCW or other section of the Revised Code of Washington.  Thus, notwithstanding  [[Orig. Op. Page 10]] the fact that a municipality holds a waste discharge permit issued by the Environmental Protection Agency which was concurred in by the Department of Ecology under § 301(h) of the Federal Clean Water Act, that municipality is not relieved of the requirement set forth in RCW 90.48.162 of obtaining a state waste discharge permit from the Department of Ecology.

             Question (3):

             You further ask:

             Is the Department of Ecology precluded by federal law from including in the state permit any waste treatment requirements, mandated by state law, that are more stringent than those contained in a permit which was issued by the Environmental Protection Agency without express state concurrence?14/

             We answer this question in the negative.

            Section 510 of the Clean Water Act, 33 U.S.C.A. § 1370, provides in pertinent part:

             "Except asexpressly provided in this Act, nothing in this Act shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in  [[Orig. Op. Page 11]] effect under this Act, such State or political subdivision or interstate agencymay not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performancewhich is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this Act; . . ."  (Emphasis supplied)

             The intent of this section is clear.  If a state law mandatesmore stringent waste treatment requirements than are contained in a National Pollutant Discharge Elimination System permit issued by the Environmental Protection Agency, nothing in the Clean Water Act precludes the effectiveness of that directive unless the act expressly so states.  City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 340-341, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981).  The Clean Water Act contains no such express statement.  Turning to chapter 90.48 RCW, nothing therein relieves the Department of Ecology from the mandate of including any more stringent treatment standards required by state law to be included in permits it issues, notwithstanding the Environmental Protection Agency has issued a permit as provided in § 301(h).

             Question (4):

             Your final question asks:

             Under state law may a municipality discharge wastes from its sewerage system into Puget Sound, or other marine waters, without providing secondary treatment?

             We also note that in posing this question you have given us the following definition of "secondary treatment."

             "The second step in wastewater treatment using biological methods (bacterial action).  The process removes up to 90 percent of the dissolved pollutants.  A secondary waste‑treatment plant may consist of the following units: trickling filter; aeration or activated sludge tank; secondary clarifier, secondary settling tank, final settling tank, and final settling basin."

              [[Orig. Op. Page 12]]

            Neither that definition nor the term "secondary treatment" itself, however, is used in any existing Washington statute relating to the subject at hand.15/   Nor, for that matter, is there any state law currently in effect which singles out "marine waters" of Puget Sound for special consideration in terms of the wastes which may be discharged therein.16/

             The question of whether "secondary treatment" (as above defined) is required by state law in any given instance is, therefore, not one which can be answered, unequivocably, by this office in an attorney general's opinion.  Instead, as we view it, it is a question which can only be answered on a case‑by-case basis by the Department of Ecology itself in accordance with those standards and criteria whichare expressly spelled out in existing state law.

             Four sections of Title 90 RCW are relevant in determining the extent of treatment required for sewerage (or other) discharges into the state's water.  First, RCW 90.48.010 sets forth the following policy:

             "It is declared to be the public policy of the state of Washingtonto maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington.  Consistent with this policy, the state of Washington will  [[Orig. Op. Page 13]] exercise its powers, as fully and as effectively as possible, to retain and secure high quality for all waters of the state. . . ."  (Emphasis supplied)17/

             Next to be noted is RCW 90.48.035 which was amended in 196718/ and expressly empowers the Department of Ecology‑-as the administrator of these laws‑-to promulgate

             ". . . regulations relating to standards of quality . . . for substances discharged therein [into waters of the state] in order to maintain the highest possible standards of all waters of the state in accordance with the public policy as declared in RCW 90.48.010."

             Then, four years later, the legislature twice again addressed the use of "all known, available and reasonable methods" (RCW 90.48.010, supra) by its passage of the third and fourth provisions here to be noted.  By § 4, chapter 160, Laws of 1971, 1st Ex. Sess. (now RCW 90.52.040) it provided that:

            In the administration of the provisions of chapter 90.48 RCW, the director of the department of ecology shall, regardless of the quality of the water of the state to which wastes are discharged or proposed for discharge, and regardless of the minimum water quality standards established by the director for said waters, require wastes to be provided with all known, available, and reasonable methods of treatment prior to their discharge or entry into waters of the state."  (Emphasis supplied)

            And later during the same session, by § 2, chapter 225, Laws of 1971, 1st Ex. Sess. (RCW 90.54.020(3)(b)), the legislature reaffirmed that mandate as a "fundamental" of our state's water policy.

             These, then, are the standards and criteria which must be applied by the Department of Ecology under existing law.  All waste  [[Orig. Op. Page 14]] proposed for discharge into public waters must be provided with "all known, available, and reasonable methods of treatment" prior to being discharged into those waters‑-regardless of the quality of the waters.

             Such statutory directions to the Department of Ecology, however, clearly do bring into play the expertise of the department as administrator of the state's water pollution control system.  Accord,Weyerhaeuser v. Southwest Air Pollution Control Authority, 91 Wn.2d 77, 586 P.2d 1163 (1978).  The precise level of treatment required by those general standards involves, primarily, engineering determinations;i.e., as to what treatment methods are "known," what treatment methods are "available," and what treatment methods are "reasonable" with respect to the particular installation in light of the factual circumstances surrounding it.19/   To make those determinations a review must be conducted by the department of existing engineering technologies in order to enable it to decide which methods of treatment‑-including but not limited to "secondary treatment" as above defined‑-are suitable with respect to the waste situation involved in the particular case.  Cf.,Weyerhaueser,supra.20/

              [[Orig. Op. Page 15]]

            This completes our consideration of your several questions.  We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

CHARLES B. ROE, Jr.
Senior Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/See § 11, chapter 216, Laws of 1945; and § 6, chapter 13, Laws of 1967.

 2/See § 1, chapter 71, Laws of 1955; and § 1, chapter 140, Laws of 1972, 1st Ex. Sess.

 3/See § 27, chapter 13, Laws of 1967.

 4/That act is now codified, in an amended form, in 33 U.S.C.A. § 1251 et seq. The "Federal Water Pollution Control Act," in its original version, was enacted in 1948.  Pub. L. No. 80-845, 62 Stat. 1155 (1948).

 5/For a description of the 1972 federal legislation, see Dolgin and Guilbent, Federal Environmental Law 683, et seq. (1974).

 6/See, e.g., 33 U.S.C.A. § 1342(b) pertaining to the National Pollutant Discharge Elimination System and 33 U.S.C.A. § 1344(g)(l) pertaining to a "dredge and fill" permit program.

 7/Thus today, RCW 90.48.260 provides in pertinent part:

 "The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act as amended and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. . . ."

 8/The motivation for these continuing legislative responses is undoubtedly derived from the rule that a legislative body may not incorporate provisions into its enactments solely by reference to future acts of other legislative bodies.  Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492 (1935); see also, State ex rel. Kirschner v. Urquhart, 50 Wn.2d 131, 310 P.2d 261 (1957).

 9/See Pub. L. 95-217, § 2, 91 Stat. 1566.

 10/33 U.S.C.A. § 1342.  This section establishes a waste discharge permit system, pertaining to "point sources," denominated the National Pollutant Discharge Elimination System (NPDES).  SeeEnvironmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 202, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).

 11/Those conclusions, as also set forth in § 301(h), supra, are:

 "(1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 304(a)(6) of this Act;

 "(2) such modified requirements will not interfere with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water;

 "(3) the applicant has established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable;

 "(4) such modified requirements will not result in any additional requirements on any other point or nonpoint source;

 "(5) all applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced;

 "(6) to the extent practicable, the applicant has established a schedule of activities designed to eliminate the entrance of toxic pollutants from nonindustrial sources into such treatment works;

 "(7) there will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit;

 ". . ."

 12/See footnote 11, supra.

 13/In this regard, our examination of the legislative history pertaining to § 301(h) reveals nothing that is helpful in gleaning congressional intent as to such criteria.

 14/In posing this question you have asked us to assume that the Environmental Protection Agency issued an NPDES permit under § 301(h), supra, without express state concurrence.  We understand that some have interpreted § 301(h) to allow a state's concurrence to come about by implication arising from a state's inactions.  See the waiver concept, contained in 40 C.F.R. §124.54(b), which contemplates that the Environmental Protection Agency may issue an NPDES permit without a state's express concurrence.  We express no opinion as to the validity of that interpretation of federal law.  For purposes here, we assume that no express concurrence has been provided by this state to the federal agency.

 15/The definition, instead, comes from a publication of your office, State of Washington, Department of Ecology, An Environmental Glossary 101 (September 1974); see also, WAC 173-240-040 and 40 C.F.R. § 133.

 16/Earlier this year Puget Sound was singled out for examination of its quality.  See, chapter 243, Laws of 1983.  In posing your fourth question, however, you have asked us to assume that the wastes of the municipality involved, when discharged without receiving secondary treatment, will not violate receiving water quality standards established by the Department of Ecology for such waters.

 17/This policy requiring the use of "all known, available and reasonable methods" to prevent and control pollution has been in effect, as a part of the original enactment of the state's water pollution control laws, since 1945.  See, § 1, chapter 216, Laws of 1945.

 18/Section 6, chapter 13, Laws of 1967.

 19/The use of the encompassing word "all" indicates to us that the existing "state of the art" or "best available" treatment technologies are required to be used.  Cf.,Weyerhaueser v. Southwest Air Pollution Control Authority,supra.

 20/These determinations by the Department of Ecology are, of course, to be made in light of the foundation policy that "waters of the state" shall be of high quality and be maintained to the "highest possible standards to insure the purity of all waters of the state" consistent with various environmental and economic objectives.  RCW 90.54.020(3)(b) and RCW 90.48.010.

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