Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2018 No. 10 - Dec 26 2018
Attorney General

MARIJUANA—AIR POLLUTION CONTROL AUTHORITY—DEPARTMENT OF ECOLOGY—ENFORCEMENT—Enforcement Of Clean Air Act By Local Air Pollution Control Authorities With Regard To Odors

1.         Local clean air agencies have broad authority to enforce the Clean Air Act, even if the Department of Ecology has not set minimum standards.

2.         Local authorities may use state regulations as a minimum standard when regulating odors.

3.         A regional clean air agency must follow the procedures set forth in the Clean Air Act prior to any rulemaking or enforcement actions.

December 26, 2018

The Honorable Cary Condotta
State Representative, District 12
PO Box 40600
Olympia, WA   98504-0600

Cite As:
AGO 2018 No. 10

Dear Representative Condotta:

            By letter previously acknowledged, you have requested an opinion regarding Washington’s Clean Air Act and the power of local clean air authorities. Your questions involve the interplay between the powers of the Department of Ecology and the powers of local clean air authorities.

QUESTIONS PRESENTED AND BRIEF ANSWERS

            We have paraphrased and reversed the order of the three questions you posed in order to best facilitate a discussion of the general and specific powers of a local clean air authority. You ask:

1.         What authority does a local clean air agency have to impose its own restrictions on a particular odor when the Department of Ecology is silent?

Brief Answer: The legislature has granted local authorities broad discretion to adopt, amend, and repeal their own regulations. Generally, the Department of Ecology need not set minimum standards in order for a local authority to impose its own restrictions.

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2.         What legal standards apply to a local authority’s ability to regulate odors under the Clean Air Act?

Brief Answer: Because local authorities have broad discretion to create their own emission standards and regulations, a local authority need only act in conformity with the Clean Air Act and may use state regulations as a minimum standard when regulating odors.

3.         What procedures must a regional air authority follow in order to make and enforce policies that apply to cannabis production and processing?

Brief Answer: A regional clean air agency must follow the procedures set forth in the Clean Air Act prior to any rulemaking or enforcement actions. Some of these procedures flow from the Washington Administrative Procedure Act, but that act does not apply to local authorities in its entirety.

BACKGROUND

            The legislature has declared that it is “public policy to preserve, protect, and enhance the air quality for current and future generations,” and “[i]mproving air quality is a matter of statewide concern and is in the public interest.” RCW 70.94.011. “[T]he statutorily declared public policy of the Washington Clean Air Act is to provide state, regional, and local units of government with broad authority to develop comprehensive programs of air pollution prevention and control.” Puget Sound Air Pollution Control Agency v. Kaiser Alum. & Chem. Corp., 25 Wn. App. 273, 277, 607 P.2d 870 (1980) (citing RCW 70.94.011). This includes authority to regulate “odorous substances.” RCW 70.94.030(1) (defining “air contaminant”). The legislature envisioned “a liberal delegation of responsibility to regional or multi-county bodies when it state[d] ‘it is the purpose of this chapter to provide . . . for an appropriate distribution of responsibilities between the state, regional, and local units of government’.” ASARCO, Inc. v. Puget Sound Air Pollution Control Agency, 112 Wn.2d 314, 322, 771 P.2d 335 (1989) (second alteration in original) (citing RCW 70.94.011). To that end, the legislature created air pollution control authorities in each county of the state. AGO 2007 No. 2, at 1; RCW 70.94.053(1), .081. Any pollution control authority remains inactive unless its respective county legislative body activates it. RCW 70.94.055; AGO 2007 No. 2, at 2.

            The boundaries of each county authority include “all incorporated and unincorporated areas of the county within which it is located.” RCW 70.94.053(1); AGO 2007 No. 2, at 1. Contiguous counties may form a multi-county authority. RCW 70.94.053(2), .055; AGO 2007 No. 2, at 2. An authority’s jurisdictional boundaries are coextensive with the boundaries of the county or counties. RCW 70.94.030(5); AGO 2007 No. 2, at 3. A board of directors governs each authority, and all active authorities are required to carry out the duties and exercise the powers provided in the Clean Air Act. RCW 70.94.100(1); AGO 2007 No. 2, at 2; RCW 70.94.053(2).

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            In analyzing the powers of local government entities, it is important to distinguish between cities and counties, which are explicitly granted authority in article XI, section 11 of the Washington Constitution, and other types of local governments (like local clean air authorities), which are not. Hugh D. Spitzer, “Home Rule” vs. “Dillon’s Rule” for Washington Cities, 38 Seattle U. L. Rev. 809, 824-28 (Spring 2015) (discussing the broad authority of cities and counties). The Washington Constitution grants cities and counties plenary police power authority. Const. art. XI, § 11. When their authority is at issue, the question “is not whether the legislature granted [cities or counties] authority, but whether state law specifically removes authority that the [city or county] is presumed to possess.” Emerald Enters., LLC v. Clark County, 2 Wn. App. 2d 794, 812, 413 P.3d 92 (2018). However, other local government entities, like clean air authorities, have only those powers expressly granted by the legislature, as well as those powers “necessarily or fairly implied in or incident to” the express powers, or essential to the purposes of the local entity. Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 788, 357 P.3d 1040 (2015). In other words, the legislature must specifically act if it wants to restrain the authority of cities or counties, but for other municipal corporations specific legislative action is required to grant authority. See Spitzer, 38 Seattle L. Rev. at 856 (authority of cities and counties), 858 (authority of special districts). Thus, local clean air authorities must be able to point to some statutory authority to support their claimed powers. That said, as detailed below, statutes provide local clean air authorities with very broad powers.

            The Washington State Liquor and Cannabis Board more generally regulates the licensed production, processing, and sale of marijuana within the system authorized by state law. RCW 69.50.342. The statutes governing marijuana production and processing do not specifically address pollution or odors. RCW 69.50.342. They also do not expressly deprive local clean air agencies of their authority to enforce the Clean Air Act. See American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 588, 192 P.3d 306 (2008) (courts read statutes together to achieve a harmonious statutory scheme); see also WAC 314-55-020(15) (providing that the issuance of a state license to a marijuana business does not excuse any violation of local rules or ordinances).

ANALYSIS

1.         What authority does a local clean air agency have to impose its own restrictions on a particular odor when the Department of Ecology is silent?

            The powers and duties of an air pollution control authority are described in a number of statutes in the Clean Air Act, but many are set forth in RCW 70.94.141. AGO 2007 No. 2, at 2. For example, a board of directors has the power to adopt, amend, and repeal its own rules and regulations to implement the Clean Air Act, so long as they are consistent with the Act and in accordance with RCW 42.30, Washington’s Open Public Meetings Act. RCW 70.94.141(1); Inland Foundry Co. v. Spokane County Air Pollution Control Auth., 82 Wn. App. 67, 70-71, 915 P.2d 537 (1996); Kaiser Alum. & Chem. Corp., 25 Wn. App. at 277-78. Moreover, a board can hold hearings regarding the administration of the Clean Air Act, including issuing subpoenas and taking testimony under oath. RCW 70.94.141(2). The board may also issue such orders as may be necessary to effectuate the purposes of the Clean Air Act and enforce those orders by “all

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appropriate administrative and judicial proceedings.” RCW 70.94.141(3); ASARCO, 112 Wn.2d at 337. The Clean Air Act contains nine additional enumerated powers of the board of any activated authority in RCW 70.94.141.

            The legislature has directed the Department of Ecology to “encourage local units of government to handle air pollution problems within their respective jurisdictions[.]” RCW 70.94.331(7). Most relevant to your question is that the boards of local authorities can create more “stringent” requirements than the Department. The Department has all of the same powers given to boards of local authorities in RCW 70.94.141. RCW 70.94.331(1). The Department also has the power to adopt “emission standards which shall constitute minimum emission standards throughout the state.” RCW 70.94.331(2)(b). However, an authority may enact more stringent emission standards and adopt more stringent emission control requirements than those of the Department.[1] RCW 70.94.331(2)(b), .380(2). Furthermore, the legislature has specified that the “department shall enforce the air quality standards and emission standards throughout the state except where a local authority is enforcing the state regulations or its own regulations which are more stringent than those of the state.” RCW 70.94.331(6) (emphasis added).

            The Department does have the power to conclude that emissions from a particular type of air contaminant source should be regulated on an exclusive statewide basis. RCW 70.94.395. Even then, however, a local authority can request that the Department adopt more stringent rules for the authority’s geographical area. RCW 70.94.395. If the Department adopts such standards, the local authority can then request to have all powers necessary for their enforcement. RCW 70.94.395.

            Thus, generally speaking, a local clean air authority can lawfully adopt its own rules and regulations under the parameters set forth in the Clean Air Act. Local authorities do not need to rely on the Department of Ecology to set minimum emission standards. Additionally, local authorities can enact more stringent standards than those that exist statewide.

2.         What legal standards apply to a local authority’s ability to regulate odors under the Clean Air Act?

            Your next question builds upon a local authority’s general authority to create its own rules and regulations to implement the Clean Air Act. You specifically ask what a local authority can do in terms of regulating odors. The answer to this question depends on definitions used in the Clean Air Act, the accompanying Washington Administrative Code, and specific authority granted to the local authorities.

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            It is unlawful for any person to cause air pollution or permit it to be caused in violation of the Clean Air Act or any valid rule under the Act. RCW 70.94.040. “Air pollution” is the presence of one or more “air contaminants” that is likely to be injurious to human health, plant or animal life, or property or which unreasonably interferes with enjoyment of life and property. See RCW 70.94.030(2). With particular regard to odors, the legislature has defined the term “air contaminant” to include an “odorous substance.” RCW 70.94.030(1).

            As discussed above, an authority may enact more stringent emission standards and adopt more stringent emission control requirements than those of the Department. RCW 70.94.331(2)(b), .380(2). “Emission standard” is defined as a requirement established under the Clean Air Act that “limits the quantity, rate, or concentration of emissions of air contaminants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice, or operational standard adopted” under the federal or state Clean Air Acts. RCW 70.94.030(12); WAC 173-400-030(27). Because the definition of “air contaminant” includes “odorous substance,” the legislature has granted local authorities the power to enact emission standards that deal specifically with odors, and it is unlawful for any person to cause air pollution in violation of those standards. RCW 70.94.030(1), (2); WAC 173-400-030(3); RCW 70.94.040.

            The Department of Ecology has adopted rules in the Washington Administrative Code that exemplify this power. A local authority may enforce the regulations contained in the WAC and may also adopt its own standards or requirements. WAC 173-400-020(2). Similar to the Clean Air Act, the WAC specifies that an authority’s standards or requirements may be more stringent than current regulations but may not be less stringent than state standards. WAC 100-400-020(2). The minimum state “emission standard” regarding odors requires “any person” who causes or allows the generation of “any odor from any source or activity” that “may unreasonably interfere with any other property owner’s use and enjoyment of his property” to use “recognized good practice and procedures to reduce these odors to a reasonable minimum.” WAC 173-400-040(5).

            This is the extent of any minimum emission standard regarding odors in either the Clean Air Act or the WAC.[2] However, this does not preclude local authorities from going beyond what is provided in the WAC. For example, some local authorities have adopted regulations that simply prohibit any person from allowing emissions that rise to the level of unreasonable interference with any other property owner’s use and enjoyment of property. See, e.g., Olympic Regional Clean Air Agency Rule 8.5(c); Spokane Regional Clean Air Agency Regulation 1, Article VI, Section 6.04(C). There are no specific requirements that apply only to marijuana odors.

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3.         What procedures must a regional air authority follow in order to make and enforce policies that apply to cannabis production and processing?

            Having established that local authorities may exercise broad discretion to regulate emissions of air contaminants, including odors, we can address your final question. A local authority has the power to enforce the minimum odor standard in WAC 173-400-040(5) without having to adopt additional rules. As a reminder, that minimum state “emission standard” requires “any person” who causes or allows the generation of “any odor from any source or activity” that “may unreasonably interfere with any other property owner’s use and enjoyment of her or his property” to use “recognized good practice and procedures to reduce these odors to a reasonable minimum.” WAC 173-400-040(5). A local authority may also choose to enact a more stringent standard. See, e.g., WAC 173-400-020; RCW 70.94.141(2)-(3). If a local authority does choose to adopt its own rules and regulations, the Clean Air Act specifies what such an authority must do. The Clean Air Act also specifies what a local authority must do in order to enforce its regulations. The remainder of this discussion considers the general processes for rulemaking and enforcement under the Clean Air Act.

Rules and Regulations

            The board exercises all powers of the authority except as otherwise provided by the legislature. RCW 70.94.130. The board must meet at least ten times per year, and all meetings must be publicly announced and open to the public. RCW 70.94.130. A majority of the board must approve any action taken by the board. RCW 70.94.130.

            The Washington Administrative Procedure Act (APA) governs state administrative rulemaking and adjudication procedures. See RCW 34.05; Victory Ctr. v. City of Kelso, No. 3:10-cv-5826-RBL, 2012 WL 1133643, at *9 (W.D. Wash. Apr. 4, 2012). However, the APA only applies to “state agencies” administering statewide programs. Kitsap County Fire Prot. Dist. v. Kitsap County Boundary Review Bd., 87 Wn. App. 753, 757, 943 P.2d 380 (1997); see RCW 34.05.010(2), .030. The legislature explicitly stated in the Washington Clean Air Act that “[a]n air pollution control authority shall not be deemed to be a state agency.” RCW 70.94.141(1); see also RCW 70.94.081 (“An activated authority shall be deemed a municipal corporation . . . .”). That said, as detailed below, the legislature has specifically directed local air pollution control authorities to comply with certain provisions of the APA.

            When the board of an activated authority wants to adopt, amend, or repeal a rule or regulation, it must hold a public hearing in accordance with the Washington Open Public Meetings Act. Moreover, the legislature requires the board to follow the notice and adoption procedures set forth in the APA that are not in conflict with the Open Public Meetings Act, despite the fact that authorities are municipal corporations and not state agencies. RCW 70.94.141(1); see also Inland Foundry Co., 82 Wn. App at 69. Local authorities do not publish their rules in the Washington Administrative Code, but they do have to comply with RCW 34.08, the Washington Register Act. RCW 70.94.141(1). The Clean Air Act itself also imposes certain standards that must be met in order for a local authority to properly adopt certain types of rules or regulations. See, e.g., Inland

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Foundry Co., 82 Wn. App. at 70-71 (discussing local authority’s power to classify contaminant sources under RCW 70.94.151(1) and the specific statutory criteria governing such classifications).

Judicial review of rules adopted by an activated air pollution control authority is governed by the APA. RCW 70.94.141(2). Thus, although a local air pollution authority is a municipal corporation, its rules are reviewed under the APA in the same manner as the rules of a state agency. Inland Foundry Co., 82 Wn. App. at 69. A court reviewing a rule under the APA can declare it invalid only if it is unconstitutional, exceeds statutory authority, was adopted outside required rule-making procedures, or is arbitrary and capricious. Id. (citing RCW 34.05.570(2)(c)).

Enforcement Actions

            The Clean Air Act specifies what a local authority must do in order to enforce its rules and regulations. Before the commencement of any formal enforcement action under RCW 70.94.430 or .431, a local authority must provide notice to the alleged violator. RCW 70.94.211. Furthermore, the authority must specify the rule alleged to be violated, the facts alleged to constitute a violation, and may include an order directing that necessary corrective action be taken within a reasonable time. RCW 70.94.211. Any order issued by the local authority shall become final unless appealed to the Pollution Control Hearings Board. RCW 70.94.221. Proceedings before the Hearings Board are governed by WAC 371-08. From there, an aggrieved party can obtain judicial review of an order from the Hearings Board as provided in the APA. RCW 43.21B.180; Bowers v. Pollution Control Hr’gs Bd., 103 Wn. App. 587, 595, 13 P.3d 1076 (2000).

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

JARED R. RAYBORN
Assistant Attorney General

wros


               [1] Local authorities cannot deviate from statewide emission levels in the area of woodstoves and solid fuel burning devices. RCW 70.94.331(2)(b), .457(1), .470. In addition, if an authority desires to implement less stringent standards than the Department, it must first get the Department’s approval after a public hearing and due notice to interested parties. See RCW 70.94.380.

               [2] There is an exemption under the Clean Air Act that could have a significant impact on a local authority’s ability to regulate odors. The legislature has exempted odors caused by “agricultural activity” consistent with good agricultural practices on “agricultural land.” RCW 70.94.640(1). “Agricultural activity” and “agricultural land” are specifically defined in the statute. See RCW 70.94.640(5)(a), (c). An analysis of the application of this exemption to marijuana growers goes beyond the scope of this opinion.