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AGO 1993 No. 6 - April 15, 1993
AGO Opinion Header Image
Christine Gregoire | 1993-2004 | Attorney General of Washington

DEPARTMENT OF ECOLOGY--HEALTH--SEWER--DISTRICTS--HAZARDOUS WASTE--FEES--Ability of Local Health Board to Charge Fees in Connection With Implementation of Local Hazardous Waste Plan.

1.  Chapter 70.105 RCW requires local governments to adopt hazardous waste plans for the management of moderate-risk waste.  A local government can implement such plans through its board of health.

2.  A local health board can assess a fee against a sewer district for services the board performs in connection with the implementation of a local hazardous waste plan.  However, the fee must be no greater than the actual cost of providing the relevant services.

3.   The authority granted to the Department of Ecology to regulate hazardous waste does not preempt the authority of a local health board to adopt a local hazardous waste plan for the management of moderate-risk waste and to charge a fee in connection with the implementation of the plan.

                                                                   * * * * * * * * * *

                                                                   April 15, 1993

Honorable Phil Talmadge
State Senator, District 34
432 John A. Cherberg Building, MS 0434
Olympia, WA  98504-0434

                                                                                                Cite as:AGO 1993 No. 6

Dear Senator Talmadge:

            By letter previously acknowledged you requested an opinion from this office on questions relating to the assessment of fees under local hazardous waste management plans.  We paraphrase your questions as follows:

            1.         May a local health board implement a local hazardous waste plan?

            2.         If the answer to Question 1 is yes, may a local health board assess fees against a sewer district in connection with implementing such a plan?

            3.         If a local health board may assess fees in implementing a local hazardous waste plan, is its authority to do so preempted by chapter 70.105 RCW?

            We answer the first question in the affirmative, the second question in the affirmative as qualified in the analysis set forth below, and the third question in the negative.

                                                                BACKGROUND

            Local health boards, departments, and officers are governed by the provisions of chapter 70.05 RCW and, in addition, derive certain police powers from article 11, section 11 of the Washington Constitution, which provides:  "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."  SeeSpokane Cy. Health Dist. v. Brockett, 120 Wn.2d 140, 147, 839 P.2d 324 (1992).

            For purposes of chapter 70.05, "local board of health" means "the city, town, county or district board of health".  RCW 70.05.010(3).[1]  The powers and duties of local boards of health are set forth in RCW 70.05.060:

                        Each local board of health shall have supervision over all matters pertaining to the preservation of the life and health of the people within its jurisdiction and shall:

                        (1) Enforce through the local health officer or the administrative officer appointed under RCW 70.05.040, if any, the public health statutes of the state and rules promulgated by the state board of health and the secretary of health;

                        (2)Supervise the maintenance of all health and sanitary measures for the protection of the public health within its jurisdiction;

                        (3) Enact such local rules and regulations as are necessary in order to preserve, promote and improve the public health and provide for the enforcement thereof;

                        (4) Provide for the control and prevention of any dangerous, contagious or infectious disease within the jurisdiction of the local health department;

                        (5) Provide for the prevention, control and abatement of nuisances detrimental to the public health;

                        (6) Make such reports to the state board of health through the local health officer or the administrative officer as the state board of health may require; and

                        (7)Establish fee schedules for issuing or renewing licenses or permits or for such other services as are authorized by the law and the rules of the state board of health:  PROVIDED, That such fees for services shall not exceed the actual cost of providing any such services.[[2]]

(Emphasis added.)[3]

                                                                    ANALYSIS

            With this background in mind, we turn to your questions.

            Question 1:

            May a local health board implement a local hazardous waste plan?

            The Legislature has recognized hazardous waste as a significant public health concern and has delegated primary authority for its regulation to the Department of Ecology.  See chapter 70.105 RCW; Laws of 1985, ch. 448, the Hazardous Waste Management Act ("the Act").  In adopting the Act, the Legislature declared that "safe and responsible management of hazardous waste isnecessary to prevent adverse effects on the environment and to protect public health and safety."  RCW 70.105.005(2) (emphasis added).

            Chapter 70.105 RCW defines hazardous waste and places it into a number of categories:  "'Hazardous waste' means and includes all dangerous and extremely hazardous waste, including substances composed of both radioactive and hazardous components."  RCW 70.105.010(15).

                        "Moderate‑risk waste" means (a) any waste that exhibits any of the properties of hazardous waste but is exempt from regulation under this chapter solely because the waste is generated in quantities below the threshold for regulation, and (b) any household wastes which are generated from the disposal of substances identified by the department as hazardous household substances.

RCW 70.105.010(17).

            Although a leading role in hazardous waste regulation and management was given to the Department of Ecology, the Legislature also envisioned a significant role for local government.  An express purpose of chapter 70.105 RCW is to promote cooperation between state and local governments by assigning planning responsibilities for hazardous waste to the state and similar responsibility formoderate-risk waste to local governments.  RCW 70.105.007(3).  "Safe and responsible management of hazardous waste requires an effective planning process that involveslocal and state governments, the public, and industry."  RCW 70.105.005(6) (emphasis added).

            The Act established the role of local government in managing moderate-risk waste by (1) exempting or excluding such waste from regulation under state law, RCW 70.105.005(10), .010(17); and (2) requiring local governments to prepare and implement a local hazardous waste plan to manage moderate-risk waste.  RCW 70.105.220.

                        Wastes that are exempt or excluded from full regulation under this chapter due to their small quantity[[4]]or household origin have the potential to pose significant risk to public health and the environment if not properly managed.   It is the intent of the legislature that the specific risks posed by such waste be investigated and assessed and that programs be carried out as necessary to manage the waste appropriately.  In addition, the legislature finds that, because local conditions vary substantially in regard to the quantities, risks, and management opportunities available for such wastes, local government is the appropriate level of government to plan for and carry out programs to manage moderate‑risk waste, with assistance and coordination provided by the department.

RCW 70.105.005(10)(emphasis added).

            RCW 70.105.220 requires each local government, or combination of contiguous local governments, to complete and submit a local hazardous waste plan to the Department of Ecology by June 30, 1990, and to implement its plan by December 31, 1991.  Paramount among the required elements of the plan is

            [a] plan or program to manage moderate‑risk wastes that are generated or otherwise present within the jurisdiction.  This element shall include an assessment of the quantities, types, generators, and fate of moderate‑risk wastes in the jurisdiction.  The purpose of this element is to develop a system of managing moderate‑risk waste, appropriate to each local area, to ensure protection of the environment and public health[.]

RCW 70.105.220(1)(a) (emphasis added).

            In chapter 70.105 RCW, "local government" means "a city, town, or county".  RCW 70.105.010(16).  While local health boards are not expressly mentioned in chapter 70.105 RCW, given the significant threat to public health posed by hazardous waste, local authorities may choose to act through local boards of health in establishing their hazardous waste plans.  Their power to do so is found in article 11, section 11 of the Washington Constitution, which grants local governments authority to enact police, sanitary, and other regulations that "are not in conflict with general laws".

            In summary, chapter 70.105 RCW expressly requires local governments to adopt hazardous waste plans for the management of moderate-risk waste.  We have found no impediment to a local government implementing such a plan through its board of health.

            Question 2:

            If the answer to Question 1 is yes, may a local health board assess fees against a sewer district in connection with implementing such a plan?

            Local boards of health are given express statutory authority to set certain fees.  RCW 70.05.060(7), repeated here for ease of reference, provides:

                        Each local board of health . . . shall:

                         . . . .

                        (7) Establish fee schedules for issuing or renewing licenses or permits or for such other services as are authorized by the law and the rules of the state board of health:  PROVIDED, That such fees for services shall not exceed the actual cost of providing any such services.

            Local health boards have not been granted express authority, either by the Legislature or the state board of health, to regulate, or to grant licenses or permits to, public sewer systems.  Compare chapter 246-271 WAC, Public Sewage with chapter 246-272 WAC, On-Site Sewage System (on-site sewage systems extensively regulated, and permits granted by, local boards of health).

            Nevertheless, local boards do have authority to assess fees "for such other services as are authorized by the law" as long as the fees do not exceed the actual cost of providing the service.  RCW 70.05.060(7).  In implementing this provision, a local board of health may act pursuant to an express legislative delegation of authority or pursuant to its general police power as expressed in article 11, section 11 of the Washington Constitution.  SeeSpokane Cy. Health Dist. v. Brockett, 120 Wn.2d at 147-48 (challenge to district board of health decision to establish a needle exchange program for the prevention of AIDS).  Regulations relating to the public health fall squarely within the grant of authority to local governments contained in article 11, section 11 of the Washington Constitution.  Seeid. at 147.

            Municipalities have broad powers to enact police regulations.  Reasonable police regulations will be upheld unless they conflict with state law or the Legislature has clearly and explicitly stated its intent to preempt the power of the local government to legislate in the area.

Second Amendment Found. v. Renton, 35 Wn. App. 583, 587, 668 P.2d 596 (1983) (citations omitted).

            Thus, the plenary police power to regulate, accorded municipalities by article 11, section 11 of the Washington Constitution, ceases when the state enacts a general law on that particular subject, unless there is room for concurrent jurisdiction.  Id. at 587-88;Diamond Parking, Inc. v. Seattle, 78 Wn.2d 778, 781, 479 P.2d 47 (1971).

            The Legislature has granted local health boards authority to assess fees for services, as long as those fees are not greater than the actual cost of providing such services.  Beyond this, the Legislature has not enacted a general law on the assessment of fees by local boards of health.

            The issue then raised is whether the development and implementation of a local hazardous waste plan, pursuant to RCW 70.105.220, can be said to constitute a "service".  Generally, when a term is not defined in a statute, the term must be given its plain and ordinary meaning, unless a contrary intent appears.  Dennis v. Department of Labor & Indust., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987).  "Service" is defined as "the duties, work, or business performed . . . by a government official", "an act done for the benefit or at the command of another".  Webster's Third New International Dictionary 2075 (1971).

            An implemented local hazardous waste plan provides for the management of moderate-risk waste, for ongoing public involvement and public education with respect to management of moderate-risk waste, and for an inventory of hazardous waste generators and facilities managing hazardous waste within the local jurisdiction.  RCW 70.105.220.  These activities manifestly constitute "work . . . performed . . . by a government official" and confer benefit on individuals, industries, and institutions within a local jurisdiction.  When performed by a local board of health,  implementation of a local hazardous waste plan provides a "service" within the meaning of RCW 70.05.060(7).

            The fact that a fee for services is assessed against a sewer district, a government entity, does not change the foregoing analysis.  In addition to the powers directly granted them by the Legislature, sewer districts possess all the powers granted to cities, RCW 56.20.015, and are treated as municipal corporations under Washington law.  See, e.g., RCW 39.69.010, 56.08.110; Bellevue v. Patterson, 16 Wn. App. 386, 556 P.2d 944 (1976).

            InEdmonds Sch. Dist. 15 v. Mountlake Terrace, 77 Wn.2d 609, 465 P.2d 177 (1970), the state Supreme Court upheld the city's right to prescribe building codes for schools constructed within the city limits and also to assess a building permit fee against the school district.  Noting that the city had no authority to supersede or impair the educational process, the court nevertheless held that the state had "left its subordinate municipalities free to regulate each other in those activities which traditionally are thought to lie within their particular competence and are more proximate to their respective functions".  Id. at 612-13.

            InEdmonds, the court found that the Legislature had not preempted local power to prescribe building codes for schools and had neither prohibited cities from assessing a permit fee against schools, nor relieved school districts from paying such fees.  Id. at 613.  Under these circumstances, the school district was required to comply with the city's building code and to pay the permit fee.

            With regard to the question presented here, the Legislature has expresslynot preempted local authority with respect to moderate-risk waste.  Rather, authority to deal with such waste, which is the subject of local hazardous waste plans, is delegated to local governments.  Neither are local health boards prohibited from assessing service fees against municipalities.[5]  SeeAuburn v. King Cy., 114 Wn.2d 447, 788 P.2d 534 (1990).  Finally, sewer districts have not been expressly relieved from the payment of fees assessed under RCW 70.05.060.  SeeEdmonds, 77 Wn.2d at 613.

            For the foregoing reasons, we conclude that local health boards are authorized to assess fees against sewer districts for services performed in connection with the implementation of local hazardous waste plans, as long as such fees are no greater than the actual cost of providing the relevant services.[6]

            Question 3:

            If a local health board may assess fees in implementing a local hazardous waste plan, is its authority to do so preempted by chapter 70.105 RCW?

            Your third question asks whether the provisions of chapter 70.105 RCW preempt a local health board's authority to assess the fees described above.  We conclude that they do not.

            Because of problems associated with locating hazardous waste facilities, the Legislature expressly preempted local government authority to approve, deny, or regulate facilities for the disposal and incineration of hazardous waste.  RCW 70.105.005(8).  In addition, the Department of Ecology was vested with "sole authority among state, regional, and local agencies to approve, deny, and regulate preempted facilities" as defined in chapter 70.105 RCW.[7]  RCW 70.105.005(8).

            At the same time, however, the Legislature recognized that effective management of hazardous waste required coordination and cooperation among local and state governments as well as the public and industry.  See RCW 70.105.005(6).  To that end, the Legislature identified "moderate-risk waste" as uniquely affected by varying local conditions and found "local government [to be] the appropriate level of government to plan for and carry out programs to manage moderate-risk waste, with assistance and coordination provided by the department".  RCW 70.105.005(10).

            As you will recall, moderate-risk waste is either (1) waste that exhibits properties of hazardous waste but is generated in quantities below the threshold for regulation, or (2) waste identified by the Department of Ecology as hazardous household substances.  RCW 70.105.010(17).  By their terms, local hazardous waste plans address only moderate-risk waste, with the exception of the requirement for an inventory of hazardous waste generators and facilities.  RCW 70.105.220.

            In this instance, the Legislature's clear intent was not to preempt local authority over moderate-risk waste, but rather to expressly grant that authority to local governments through local hazardous waste management plans.  SeeSecond Amendment Found. v. Renton, 35 Wn. App. at 587-88 (preemption requires a clear and explicit statement of legislative intent).

            We therefore conclude chapter 70.105 RCW does not preempt a local health board's authority to adopt a local hazardous waste plan.  Rather, chapter 70.105 RCW requires local governments to adopt a hazardous waste plan for the management of moderate-risk waste.  As previously discussed, a local government may properly choose to implement its plan through its local board of health.  Under RCW 70.05.060(7), a local health board is authorized to assess fees in connection with the implementation of such a plan, as long as those fees are no greater than the actual cost of providing relevant services.

            We trust the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        SUZANNE J. SHAW
                                                                        Assistant Attorney General

:aj


    [1]Local boards of health and health districts may be organized in a number of ways.  RCW 70.05.020 provides that the governing body of a city or town that is not affiliated with another health department must organize as a local board of health or appoint a separate board of health from its members.  RCW 70.05.030 similarly provides that a county's board of commissioners constitutes its board of health unless the county is affiliated with another health department.  RCW 70.46.020 through .090 provide for the creation of health districts, which are described in RCW 70.05.010(4).  The particular form of organization does not impact the analysis contained in this opinion.

    [2]Responsibility for the collection of such fees rests with the local health officer.  RCW 70.05.070(7).

    [3]In addition, the state board of health is empowered to

     [a]dopt rules and standards for prevention, control, and abatement of health hazards and nuisances related to the disposal of wastes, solid and liquid, including but not limited to sewage, garbage, refuse, and other environmental contaminants; adopt standards and procedures governing the design, construction, and operation of sewage, garbage, refuse and other solid waste collection, treatment, and disposal facilities[.]

RCW 43.20.050(2)(b).  All local boards of health are required to enforce the rules of the state board.  RCW 43.20.050(4), 70.05.060(1).

    [4]Small quantity hazardous waste generators are defined in WAC 173-303-070(8).

    [5]Fees assessed against a municipality do not generally constitute a tax upon its citizens.  Auburn v. King Cy., 114 Wn.2d 447, 453, 788 P.2d 534 (1990).  Furthermore, a statute that may cause a need for a tax because it creates a liability for a municipality does not itself constitute a tax.  Id.; see alsoSpokane v. Spokane Police Guild, 87 Wn.2d 457, 461, 553 P.2d 1316 (1976); Lynnwood v. Snohomish Cy., 48 Wn. App. 210, 212-13, 738 P.2d 699 (1987) (rejecting the argument that the assessment of a fee against a town for a service constituted a tax).

     Because it is a question of fact, this opinion does not consider whether the fees described in your question might constitute a tax.  Cases that address this issue include Hillis Homes v. Snohomish Cy., 97 Wn.2d 804, 650 P.2d 193 (1982);  Teter v. Clark Cy., 104 Wn.2d 227, 704 P.2d 1171 (1985); Hillis Homes v. Public Util. Dist. 1 of Snohomish Cy., 105 Wn.2d 288, 714 P.2d 1163 (1986); Lynnwood, 48 Wn. App. at 213.

    [6]Whether fees assessed against a sewer district do or do not exceed the cost of providing a service in a particular instance is a question of fact and therefore beyond the scope of this opinion.

    [7]     "Preempted facility" means any facility that includes as a significant part of its activities any of the following operations:  (a) Landfill, (b) incineration, (c) land treatment, (d) surface impoundment to be closed as a landfill, or (e) waste pile to be closed as a landfill.

RCW 70.105.010(12).

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