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AGO 1968 No. 29 - September 05, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS - STATE AIR POLLUTION CONTROL BOARD - POLLUTION - ASSUMPTION OF JURISDICTION AS TO AIR CONTAMINANT SOURCE.

(1) When the state air pollution control board assumes jurisdiction over a particular type or class of air contaminant source, in the manner set forth in § 53, chapter 238, Laws of 1967 (the Washington Clean Air Act), and adopts appropriate rules and regulations to control and/or prevent the emission of air contaminants from such source, the various local or regional air pollution control authorities are thereby precluded from continuing to enforce such emission control regulations as they may previously have adopted with respect to such contaminant source.

(2) During any period of time which may elapse between the assumption of abstract jurisdiction by the state board and the effective date of such rules and regulations as are adopted by the board in implementation of that jurisdiction, the existing rules and regulations of the local or regional authority having territorial jurisdiction over the contaminant source will continue to be in effect and enforceable as to that source.

(3) The state air pollution control board in assuming jurisdiction over a particular type or class of air contaminant source, may not elect to do so only as to certain areas of the state, for the board's only authority in assuming this type of jurisdiction is to do so on a state wide [[statewide]]basis.

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

                                                               September 5, 1968

Honorable Wallace Lane
Chairman, Washington State
Air Pollution Control Board
Public Health Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 29

Dear Sir:

            This is written in response to your request for the opinion of this office on two questions pertaining to the authority of the state air pollution control board.  We paraphrase your questions as follows:

            (1) In the event that the state air pollution control board  [[Orig. Op. Page 2]] assumes jurisdiction over a particular type or class of air contaminant source, in the manner set forth in § 53, chapter 238, Laws of 1967 (the Washington Clean Air Act), does such action preclude the various local or regional air pollution control authorities from continuing to enforce such emission control regulations as they may previously have adopted with respect to such a contaminant source?

            (2) May the state air pollution control board, in assuming jurisdiction over a particular type or class of air contaminant source, elect to do so only as to certain areas of the state?

            We answer question (1) in the affirmative, subject to the qualification set forth in our analysis, and we answer question (2) in the negative.

                                                                     ANALYSIS

            In order to place your questions in proper context, we should initially note the historical development of our state legislation relating to the control of air pollution.  The first act of the legislature regarding this subject was enacted in 1957 (chapter 232, Laws of 1957).  Section 2 of this enactment contained the following declaration of purpose and statement of procedural approach to the problem:

            "Air pollution is affected by the weather, topography, population, transportation, and agricultural and industrial development, which factors vary greatly from area to area, and cause problems of control and prevention to be primarily regional in nature.  This chapter is enacted to provide for creation of separate districts to control and prevent air pollution in each area where it may exist, or is likely to occur."  (Emphasis supplied.)

            Thus, the legislature's first approach was one of vesting full authority for air pollution control in local air pollution districts.  The 1957 act contained no provision for any state supervision over the control activities of these local districts.

            This act was amended in 1961, through the passage of chapter  [[Orig. Op. Page 3]] 188, Laws of 1961, the first section of which established within the state department of health an agency designated as the state air pollution control board.  However, the powers of this board, under the 1961 act, were purely investigatory and advisory.  It is clear from an analysis of the several sections which were added to the original 1957 law by the 1961 amendment that the new state board was not designed to supersede, or to take over any of the powers previously granted to, the local air pollution control districts which had been established by the 1957 act.

            This remained the state of the law until 1967, when the legislature enacted the 1967 Washington Clean Air Act chapter 238, Laws of 1967.  Section 1 of this act (RCW 70.94.011) clearly demonstrated a fundamental change in policy with respect to the control of air pollution sources in this state.  This new policy was spelled out as follows:

            "It is hereby declared to be the public policy of the state to secure and maintain such levels of air quality as will protect human health and safety, and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of its inhabitants, promote the economic and social development of the state and facilitate the enjoyment of the natural attractions of the state.  The problems and effects of air pollution are frequently regional and interjurisdictional in nature, and are dependent upon the existence of urbanization and industrialization in areas having common topography and recurring weather conditions conducive to the buildup of air contaminants.

            "It is also declared as public policy that regional air pollution control programs are to be encouraged and supported to the extent practicable as essential instruments for the securing and maintenance of appropriate levels of air quality.

            ". . .

            "To these ends it is the purpose of this chapter to provide for a coordinated  [[Orig. Op. Page 4]] state wide [[statewide]]program of air pollution prevention and control, for an appropriate distribution of responsibilities between the state, regional and local units of government, and for cooperation across jurisdictional lines in dealing with problems of air pollution."

            In implementation of this policy, the legislature made substantial changes in the composition and method of selection of the state air pollution control board.  It also granted substantial regulatory powers to this state agency which were to be exercised in rather complex conjunction with those of the various local air pollution control agencies.1/   It is, of course, one aspect of this relationship between the state board and the local agencies which is the subject matter of this opinion.

            In addition to reconstituting the state board and altering its status from a purely investigatory and advisory body to a state regulatory agency, the 1967 act provided for substantial changes in the organization and status of the local air pollution control authorities.  Three separate types of local agencies were provided for: (1) County air pollution control authorities; (2) multicounty air pollution control authorities; and (3) regional air pollution control authorities.2/

             With respect to these local agencies, the 1967 act drew a distinction between active and inactive county, multicounty, or regional air pollution control authorities.  Only those county authorities which are located within counties of the first class, class A or class AA were designated as active county authorities; all others were designated inactive subject to activation by action of the respective boards of county commissioners.3/   Multicounty authorities, comprised of the county authorities of two or more contiguous counties, were designated as active only to the extent that component county authorities were activated prior to the merger or upon activation of the authority by the respective boards of  [[Orig. Op. Page 5]] commissioners of the component counties.4/

             In the case of regional air pollution control authorities, the legislative approach was one of dividing the entire state into five regions, designating each region as a regional authority, declaring only those regional authorities having a population in excess of 1,000,000 persons as active, and lastly, delaying the effective date of activation until July 1, 1969.5/

             [[Orig. Op. Page 6]]

            It would unduly lengthen this opinion to set forth, verbatim, all of the statutory provisions contained in the 1967 act enumerating the specific powers granted by the legislature to each of the three types or classes of local air pollution control authorities.  Suffice it to say that the act contains provisions sufficient to make it possible to blanket the entire state with active local authorities possessed of the authority to effectively regulate most of the significant existing air contaminant sources.  What purpose and function, then, did the legislature intend would be served by its grant of significant regulatory authority to the state air pollution control board -which had previously been only an investigatory and advisory body?  It seems apparent to us from a reading of the several sections of the act relating to this state board that the legislature had two separate possibilities in mind:

            (1) That in certain geographic areas of the state, local or regional regulation and control ofany of the various types or classes of air contaminant sources would be either impractical or for some other reason would not be effectively exercised by the local authority having jurisdiction.

            (2) Alternatively, that in the case of certain types or classes of air contaminant source, local regulation would be impracticable in any geographic areas even though other sources could be effectively regulated locally because of the nature of the particular source.

            Therefore, the legislature made provision for the substitution of state control for local or regional control in each of these situations.  With respect to the first category, the  [[Orig. Op. Page 7]] legislature provided in § 52 of the act for state board activation of previously inactive local or regional authorities, with the proviso that the state board could, as an alternative to activating a particular local authority, itself assume full regulatory jurisdiction over all air contaminant sources emanating from the area in question.6/

             On the other hand, in response to the second of these possibilities, the legislature enacted § 53 of the act, which is the key section to be considered in answering your questions, and which reads as follows:

            "If the state board finds, after public hearing upon due notice to all interested parties, that the control of a particular type or class of air contaminant source is beyond the reasonable capability of the local or regional air pollution control agencies, it may, by order, assume and retain jurisdiction over that type or class of air contaminant source, and may adopt and enforce rules and regulations to control and/or prevent the emission of air contaminants from such source."

            Question (1):

            Your first question, as paraphrased, is whether the state board's assumption of jurisdiction over a particular type or class of air contaminant source, in the manner set forth in § 53, supra, will preclude the various local or regional air pollution control authorities from thereafter adopting and enforcing their own emission control requirements with respect to the particular contaminant source over which the state board has assumed jurisdiction.

             [[Orig. Op. Page 8]]

            The answer to this question is dependent upon the interpretation to be given to the second paragraph of § 50 of the act, to which we have not previously referred.  This section establishes the relationship between the requirements for the control of emissions which are established by local or regional authorities and the requirements which are established by the state board,7/ as follows:

            "(1) Every city, town, county, activated authority or activated regional authority operating an air pollution control program shall have requirements for the control of emissions which are no less stringent  [[Orig. Op. Page 9]] than those adopted by the state board for the geographic area in which such air pollution control program is located.  Less stringent requirements than compelled by this section may be included in a local or regional air pollution control program only after approval by the state board following demonstration to the satisfaction of the state board that the proposed requirements are consistent with the purposes of this chapter: PROVIDED, That such approval shall be preceded by public hearing, of which notice has been given in accordance with chapter 42.32 RCW.  The state board, upon receiving evidence that conditions have changed or that additional information is relevant to a decision with respect to the requirements for emission control, may, after public hearing on due notice, withdraw any approval previously given to a less stringent local or regional requirement.

            "Nothing in this chapter shall be construed to prevent a local or regional air pollution control district or authority from adopting and enforcing more stringent emission control requirements than those adopted by the state board and applicable within the jurisdiction of the local or regional air pollution control district or authority."  (Emphasis supplied.)

            Query: Does the phrase "within the jurisdiction of the local or regional air pollution control district or authority," as used in the second paragraph of this statute, denote only territorial jurisdiction, or does it also denote jurisdiction as to the subject matter of a particular type or class of contaminant source?

            In arriving at the intent of the legislature, our first resort must be to the context and subject matter of the legislation, for the intention of the lawmaking body is to be deduced, if possible, from what it has said.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  The various rules of  [[Orig. Op. Page 10]] statutory construction are to be used only to ascertain the meaning of a statute and not to modify its provisions.  State ex rel. Thigpen v. Kent, 64 Wn.2d 823, 394 P.2d 686 (1964);Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957).  The legislative intent, will, or purpose is to be ascertained from the text of an act read as a whole, and interpreted in terms of the general purposes of the act.  Guinness v. State, 40 Wn.2d 677, 246 P.2d 433 (1952).  And lastly, a statute should not be given an interpretation which would make it an absurdity when it is susceptible of a reasonable interpretation which would carry out the manifest intent of the legislature.  Martin v. Dept. of Social Security, 12 Wn.2d 329, 121 P.2d 394 (1942).

            Applying these rules to the terminology contained in the second paragraph of § 50,supra, and reading the crucial language of this section in context with the remainder of the act as a whole, it is our considered judgment that the ability of a local or regional air pollution control authority to adopt and enforce, within its jurisdiction, more stringent emission control requirements than those adopted by the state board is predicated on the proposition that the local or regional authority has and retains jurisdiction not only over the territory in which the particular contaminant source is located but, as well, over the subject matter of the type or class of contaminant source in question.  If a particular type or class of contaminant source has been found by the state board, under § 53,supra, to be one which is beyond the reasonable capability of the local or regional agencies to control, and in furtherance of this finding and assumption of jurisdiction the board has adopted a comprehensive set of rules and regulations which it is enforcing to control or prevent the emission of air contaminants from such source, the regulatory jurisdiction of the state board must be regarded as exclusive.8/

             Any other construction of the language contained in the second paragraph of § 50, supra, would lead to the incongruous result that persons operating the facilities or equipment giving rise to an air contaminant source over which the state board has assumed jurisdiction would, nevertheless, have to submit to control and regulation by both the local or regional air pollution control agencies having territorial  [[Orig. Op. Page 11]] jurisdiction over the area in which the facilities or equipment are located and the regulatory controls of the state board.  We do not believe that this is what the legislature intended.  Instead, our reading of the act indicates a legislative intent that any such operator of a contaminant source would, at any given time, be subject either to state or local regulatory jurisdiction but not both at the same time.

            A rather strong indication of this intent may be found in § 31 of the act, which relates to individual applications for variances from the applicable regulatory controls.  This section reads, in material part, as follows:

            "(1) Any person who owns or is in control of any plant, building, structure, establishment, process or equipment may apply to the state board where it has regulatory authority under sections 52, 53, 56 and 58 of this 1967 amendatory act, or the governing body or board for a variance from rules or regulations governing the quality, nature, duration or extent of discharges of air contaminants.  The application shall be accompanied by such information and data as the state board or the governing body or board may require.  The state boardor the governing body or board may grant such variance, but only after public hearing or due notice . . ."9/   (Emphasis supplied.)

            In other words, the application for a variance is to be submittedeither to the state board or to the local authority whichever has jurisdiction (1) as to the area, or (2) as to the particular type or class of contaminant source.  However, there is no requirement in this section that a variance application be submitted to both the state board and the local authority having jurisdiction.

            Thus, in general terms, our answer to your first question is in the affirmative.  We come now to the qualification which,  [[Orig. Op. Page 12]] we believe, must be expressed with respect to this answer.  It is entirely possible, we can foresee, that there might be some time lag between the issuance of the state board's order assuming jurisdiction over a type or class of contaminant source and the board's actual adoption of rules and regulations designed to control and/or prevent the emission of air contaminants from such source.  We most certainly do not believe that the legislature intended that the particular source would go unregulated and uncontrolled during this period, for such a result would be completely inconsistent with the purpose and spirit of this act.10/

             Accordingly, it is our opinion that during this period of time between the assumption of abstract jurisdiction by the state board and the effective date of such rules and regulations as are adopted by the board in implementation of that jurisdiction, the existing rules and regulations of the local or regional authorities having territorial jurisdiction over the particular contaminant source will continue to be in effect and enforceable as to that source.

            Question (2):

            By your second question you have asked whether the state board, in assuming jurisdiction over a particular type or class of contaminant source under § 53,supra, may elect to do so only as to certain areas of the state.  Based upon the foregoing resume and analysis of chapter 238, Laws of 1967, we believe that this question must be answered in the negative.  While the state board, as we have seen, may assume limited territorial jurisdiction over all contaminant  [[Orig. Op. Page 13]] sources, in the manner provided for by §§ 52 and 54-56,supra, we can find no basis, either in § 53 or in any other portion of the statute, for the assumption of jurisdiction over particular types or classes of a contaminant source on anything but a state wide [[statewide]]basis.

            The factual premise upon which the state board's assumption of jurisdiction over a particular type or class of air contaminant source is based is that this source ". . . is beyond the reasonable capability of the local or regional air pollution control agencies, . . ."  The jurisdiction assumed is over that type or class of contaminant source.  Nothing is said in the act about anything less than a total, state wide [[statewide]]assumption of such jurisdiction, given the establishment of the underlying premise.

            It is fundamental that a state agency, such as the state air pollution control board, has only such authority as has been expressly granted to it by the legislature, or as is necessarily implied from such express powers.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).  Most certainly, § 53 does notexpressly authorize the state board to assume jurisdiction over a particular type or class of air contaminant source on anything other than a state wide [[statewide]]bases [[basis]].  Furthermore, read in context with the various other provisions of the act, with particular reference to those provisions regarding the manner in which the state board may assume jurisdiction on a limited, territorial basis, we must conclude that the authority to assume jurisdiction as to a particular contaminant source on anything less than a state wide [[statewide]]basis cannot be implied.

            This concludes our discussion and resolution of the questions which you have asked, as we understand them.  We have attempted to give you our best legal judgment, based upon the language of the act and the applicable rules of statutory construction, as to what sort of relationship between the state board and the local authorities the legislature had in mind.  However, obviously, this relationship is quite complex, and some clarification by the legislature might well be in order.

             [[Orig. Op. Page 14]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, § 44 and §§ 46-58, chapter 238, Laws of 1967.

2/See, §§ 4-8, ibid.

3/See, §§ 4, 5, ibid.

4/Sections 11 and 12; see, also, § 52, infra.

5/Sections 8-10.  The basic premise underlying the establishment of these five regional authorities was set forth in § 7 as follows:

            "It is hereby declared to be the public policy of the state of Washington to provide for the people of the populous metropolitan regions in the state the means of obtaining air pollution control not adequately provided by existing agencies of local government.  The problems and effects of air pollution are frequently regional or interlocal in nature, and are dependent upon the existence of urbanization and industrialization in areas having common topography and recurring weather conditions conducive to the build p of air contaminants.  For reasons of the present and potential dramatic growth in population, urbanization and industrialization, the special problem of air resource management, encompassing both corrective and preventive measures for the control of air pollution, cannot be adequately met by the individual towns, cities, and counties of many metropolitan regions.

            ". . ."

            Further on in this same section, the legislature set forth the basic scope of authority and responsibility of both regional and multicounty authorities, as follows:

            "Regional or multicounty authorities which, in accordance with this 1967 amendatory act, have overall authority to maintain uniform air quality standards, shall encourage county or district health departments or other agencies to participate, and may delegate to such departments or agencies full or partial responsibility for programming and enforcement within their jurisdictional boundaries.  This shall not abrogate the responsibility of the regional or multicounty authorities to provide direct control and enforcement."

6/See, also, § 54, as to the procedure to be followed in activating a local authority by state board direction.  In addition, under §§ 55 and 56, the state board is empowered to periodically review the enforcement procedures and techniques of the local or regional authorities, and, by following a prescribed procedure, to supplant the jurisdiction of the local or regional authorities with its own jurisdiction where it finds that effective regulation and control are not being afforded by the local authorities.

7/Note, at this point, should be made of subsections (2) and (3) of § 46, which authorize the state air pollution control board to:

            "(2) . . .

            "(a) Adopt ambient air quality goals;

            "(b) Adopt by rule and regulation requirements for the control or prohibition of emissions to the outdoor atmosphere of dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combination thereof.  Such requirements may be based upon a system of classification by types of emissions or types of sources of emissions, or combinations thereof, which it determines most feasible for the purpose of this chapter.

            "(3) The ambient air quality goals and requirements for the control or prohibition of emissions may be for the state as a whole or may vary from area to area, as may be appropriate to facilitate the accomplishment of the objectives of this chapter and to take necessary or desirable account of varying local conditions of population concentration, the existence of actual or reasonable foreseeable air pollution, topographic sand meteorologic conditions and other pertinent variables."

8/Likewise, it is equally clear that once the state board has assumed jurisdiction over all air contaminant sources in a particular area, as provided for in §§ 52, and 54-56, supra, its regulatory jurisdiction must be regarded as exclusive.

9/The remainder of this section sets forth a detailed list of conditions which must be found to exist before the requested variance can be granted.

10/See, in this regard, §§ 38, 39, and 40, by which the legislature expressly preserved the effectiveness of the rules and regulations of preexisting local air pollution control districts having active air pollution control programs on the effective date of the act until such rules and regulations are actually superseded by rules and regulations enacted by a new authority or regional authority exercising the regulatory powers granted by the act.  A similar continuance in effect of these latter regulatory provisions until actually superseded by the rules and regulations of the state board, after an assumption of jurisdiction under § 53,supra, seems also implicit in this respect.  Guinness v. State, supra, and Martin v. Dept. of Social Security,supra.

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