Washington State Environmental Laws

1. Washington State Environmental Laws October 4, 2006 Presented by: Ken Lederman Riddell Williams P.S.

2. Brief overview of important state laws and regulatory framework • Trends in state environmental regulation • Caveats • Won’t be able to cover everything • The real “meat” of the environmental laws in WA is in the adopted rules and regulations • May have to defer in certain areas

3. Types of State Environmental Laws • Command & control • Direct regulation over individual, municipal, and corporate activities • Water Pollution Control Act, Chapter 90.48 RCW • Washington Clean Air Act, Chapter 70.94 RCW • Model Toxics Control Act, Chapter 70.105D RCW • Haz. Waste Management Act, Chapter 70.105 RCW • Forest Practices Act, Chapter 76.09 RCW • Water Law • Groundwater Regulations • Stormwater Regulations

4. Types of State Environmental Laws • Indirect regulation • Requires local governments to adopt rules and to regulate development with state oversight • Growth Management Act, Chapter 36.70A RCW • Shoreline Management Act, Chapter 90.58 RCW • State Environmental Policy Act, Ch. 43.21A RCW

5. Water Pollution Control Act • Ensures protection of all waters of the state for public health and enjoyment • Prevents and controls pollution with all available and reasonable methods • Federally delegated program – 90.48.260 • Ecology carries out with EPA oversight • Covers Point Source Discharge, Non-Point Source Discharge, and National Pollution Discharge Elimination Permits (NPDES) • Does not cover energy facilities • Handled by Energy Facilities Site Evaluation Council (EFSEC) • Compensation schedule for NRD resulting from oil spills

6. Water Pollution Control Act • Waters of the State – 90.48.020 • Very broad – covers all fresh and salt water bodies and watercourses AND covers all groundwater resources • Pollution – 90.48.020 • All chemical and biological properties • Changes in temperature, turbidity, etc… • Any contamination or alteration of water • Interpreted very broadly by the courts

7. Water Pollution Control Act • Surface water standards • Classified from AA through C, with Lake Class • AA = all water supply, stock, fish habitat, recreation • C = only industrial supply, recreation, commerce, navigation • Effluent Limitation Approach • Specific limits for a variety of toxic pollutants • Discharge limits (municipal, commercial, and industrial) • Antidegradation • Mandatory protection of natural conditions of waters • Limited exceptions • Cannot lower water quality conditions beyond criteria • Mixing zone • Areas where water quality standards are not met • Must comply with “All Known Available & Reasonable methods of prevention, control, & Treatment” (AKART)

8. Water Pollution Control Act • Enforcement powers • Any action in law (injunctive relief) may be brought by AGO • Any act that causes or tends to cause pollution is unlawful • Includes Organic and Inorganic Matter • Issue Notice of Violation (NOV) if one violates law or creates substantial potential to violate law • 30 days to correct the problem or face penalties • Criminal violations • Jail time & $10,000 for willful violations • Civil penalties • Up to $10,000 per day for each violation • Factors = history + severity + remedial measures • Avoid conversion of agricultural land. RCW 90.48.450

9. Water Pollution Control Act • Ecology approves all proposals for sewage treatment plants (improvements & extensions) • Ecology reviews applications and issues NPDES Permits • Commercial, municipal, and industrial discharges into waters of the state must have NPDES Permit from Ecology or EFSEC • Local government can develop their own program to be approved by Ecology • Also State Waste Discharge Permits and Construction StormWater Discharge Permits • Ecology sets water quality standards for State • Coordination with Forest Practices rules and regulations

10. Stormwater Controls • Stormwater = nonpoint source of pollution • Runoff from all surfaces, not just urban environment • Currently the leading source of most environmental contamination of water sources in Washington • 1987 = Congress amends Clean Water Act • Discharge of stormwater from industries and municipalities is a point source requiring an NPDES permit • WA has delegated authority, so it became part of our state water quality control program • Two Phases • Phase I = Ecology issuance of Stormwater NPDES General Permits to cover discharges from sites of 5 or more acres, and municipalities with more than 100,000 people • Phase II = Expansion to all municipalities in urbanized areas, and construction sites from 1-5 acres

11. Stormwater Controls • General Permit • Requires implementation of a stormwater management program • Must reduce the discharge of pollutants, reduce harm to receiving waters, eliminate all inappropriate discharges, and make progress towards complying with applicable standards (water, groundwater, and sediment) • Phase II pushes General Permits onto thousands of additional construction sites • Includes evaluation process for cities of more than 10,000 • All Phase II permits targeted for December 2002

12. Stormwater Controls • Stormwater Management Manual • Promulgated by Ecology with help from WSDOT • Separate manuals for Eastern and Western WA • Objective = provide a commonly accepted set of standards and guidance for stormwater control measures at applicable sites • For use by local governments, state agencies, and private business • Expectation = established practices for development and redevelopment activities will lead to compliance with water quality standards

13. Stormwater Controls • Standards • Must use Best Management Practices (BMPs) • All projects must use appropriate ON-SITE stormwater management techniques (recent change) • Flow control requirements to address peak flows • Redevelopment requirements are generally the same as requirements for new projects with impervious surfaces • Doesn’t apply to impervious surfaces outside of project • Erosion control requirements from construction sites • Attempts to establish consistency with federal regulations • NOT a rule or regulation • Guidance document to be used in the permit phase • Limitations enforced through NPDES Permits

14. Water Law • Washington overhauled the State Water Code and adjudication process during the past 5 years • Working to reduce a 10-12 year backlog • Impeding salmon recovery efforts • Impeding development, especially in rural areas • Basic primer on Washington Water Law concepts and new trends

15. Water Law • Washington Water Law • All waters belong to the public, subject to the existing rights of others. RCW 90.03.010 • Private rights may not be acquired when use threatens the public interest. RCW 90.03.290 • Private rights obtained from State after evaluation of impact on public interest • Once obtained, your water right is a property right • Cannot be “taken” without just compensation • Appurtenant to the land on which it is used • Can NOT be used on other land without a prior approval from state for a transfer. RCW 90.03.380.

16. Water Law • Doctrine of Prior Appropriation • “First in time, first in right” • Applicable throughout the western states • Water right comes into existence only by applying the water to a “beneficial use” • Agriculture, mining, power, industrial, or domestic use • Didn’t allow for leaving the water in its natural setting • Fixed quantity provided • Any excess use, or “waste” is strictly prohibited • Cannot use more than allocated amount (acre feet, cfs, etc…) • Perfecting a right = putting it to beneficial use • Priority date of water right is date that you started to pursue it • Must act with due diligence • Perpetuity • Must be continuous use without a period of abandonment • Can’t carry the right to a newly purchased piece of property

17. Water Law • Water Rights Permit • Issued by Ecology after an investigation that: (1) water is available; (2) water going to a beneficial use; (3) water right will not impair other existing rights; and (4) no detriment to public interest. RCW 90.03.290 • Permit cancelled if you don’t complete the project to which the water is directed in a specific time period • Once the water is put to use, certificate issued. • Establishes the important details of the water right • Priority date relates back to date of filing of application

18. Water Law • Water Rights Permit • Changes to Permit must follow separate application • For change of place of use, point of diversion, or purpose • Cannot get a change in Quantity • Forfeiture / relinquishment • Failure to use for 5 consecutive years means you lose it • Some statutory exemptions apply (including use for municipal supply purposes, litigation, or determined future development) • Groundwater • Separate code (Chapter 90.44 RCW) • Basically, applies prior appropriation doctrine to groundwater • NO permit required for stock-watering, watering a ½ acre parcel of land, or for a single domestic use not exceeding 5000 gallons a day • Statutory establishment of Hydraulic Continuity • Can’t have groundwater if it affects surface water rights. 90.44.030

19. Water Law • Instream flows • Retention of water in waterbodies to protect fish, wildlife, and ecological values (serve both “quantity” and “quality”) • Water Resources Act - Chapter 90.54 RCW • Combines “quality” & “quantity” with water resource decisions • Established “fundamentals” of water management • “Beneficial use” can include instream uses • Future allocations based on maximum net benefits to public • All water rights permits are conditioned to protect instream flows necessary to protect ecological values • Becomes an appropriation entitled to legal protection • Ecology now enforcing Metering Statute (RCW 90.03.360) • Reserved rights • WintersDoctrine – Tribal reservations have “implied” water right to carry out purposes for which the reservation was created

20. Water Law • Adjudications • A “quiet title” action for water rights • Lawsuit requiring proof of a water claim • Results in a Decree establishing all of the rights and priorities of water rights in a particular drainage basin • Joins ALL persons claiming right to divert water • Problem • Supposed to identify all rights before Water Code • Very few held, so majority of water is not adjudicated • Cumbersome • Acquavella – 20 years old, 3 Supreme Court opinions and counting, 4000 participants representing 40000 users, tribal use issues, appointment of independent Watermaster, etc…

21. Water Law • Recent programs and rule changes • Dual track water right applications • Usually, everyone has to get in line (leads to lawsuits) • New program = two separate lines • 1 line for water right applications • 1 line for water right change applications • Allows process of change applications without forcing consideration of effect on new water right applications • Ecology can still prioritize change applications, but not new ones • Water conservancy boards • Creation of locally-created boards to process water rights changes, such as change of use, etc… • NOT for new water rights applications or tribal water rights • Streamlines the process, but raises specter for conflicts • Ecology reviews decisions and can appeal to PCHB • 2003 Legislative session - Ecology denied ability to use water-quality laws to limit water rights and/or water withdrawals

22. Water Law • Total Maximum Daily Loads (TMDLs) • Ecology and EPA enter agreement in 1997 for implementation of TMDLs for the 303(d) list • If Ecology can’t complete, then EPA does it for them • Covers all impaired water bodies in WA • Designed to ensure water quality standards are met • Must be considered under RCW 90.54, so will affect water rights decisions as well as water quality • Pend Oreille decision (Washington Supreme Court) • A water right does not excuse compliance with CWA or Water Pollution Control Act, even if it affects or impacts your water right • Important for energy facilities

23. Washington Clean Air Act • Goals • Preserve, protect, and enhance air quality • Promote regional air pollution control authorities • Achieve significant reductions in both small and large quantity sources of emissions • Control wood stove emissions • Education rather than enforcement • Can issue “no wood stove burning” notices • Another federally delegated program • Standards of Federal Clean Air Act are coordinated to secure benefits of federal funding • NAAQS enforced through state regulatory system

24. Washington Clean Air Act • Pollution control • Controls emissions of all airborne contaminants, including dust, smoke, matter, gas, vapor, etc… • Unlawful to cause air pollution or permit air pollution to be caused by others • Multi-county authorities established to monitor and enforce air quality laws • Puget Sound Clean Air Agency (PSCAA) • Spokane County Air Pollution Control Authority (SCAPCA) • South West Air Pollution Control Authority (SWAPCA) • Ecology covers all other areas • Agency / authority programs must be as stringent or more stringent than Ecology

25. Washington Clean Air Act • Regulatory authority • Ecology or board must approve plans and specs for construction of new sources of air emissions (new source review) • Same is required for replacement or substantial alteration of existing sources • RACT – all existing sources must install and operate Reasonably Available Control Technology • Must achieve lowest emission limit possible by application of technology that is reasonably available • All air contaminant sources must obtain renewable permits • 5 year period • Can be modified or amended at request of permitee • Local air authority can apply to operate permit system • Includes agricultural burning (wheat, weed, bluegrass, etc…)

26. Washington Clean Air Act • Enforcement power • Notice of violation • Restraining order / injunction • Penalties • Criminal penalties for willful or negligent violations • Civil penalties for all “excusable” violations • Must first issue Notice of Correction in certain circumstances • Each act and each day is another potential penalty • Current issues in Washington • Agricultural burning / ADA controversy • New source review (national)

27. Model Toxics Control Act • Adopted by Citizen’s Initiative in 1989-1990 • NOT a federally delegated program • No Memorandum of Agreement with EPA, so MTCA determinations are not binding under CERCLA • Significant differences between CERCLA & MTCA • Covers oil and petroleum products • Corrected the “mistakes” of CERCLA (more efficient) • Creation of both a State Toxics Control Account and a Local Toxics Control Account (to assist local govts with cleanups) • EPA still has authority to “overfile” and bring in CERCLA • Covers lots and lots of sites (meth labs & gas stations) • Lots and lots of public participation • VERY SUCCESSFUL • 4800 NFAs (53%), 3300 active cleanups (36%), 1000 cleanups pending (11%)

28. Model Toxics Control Act • Basic legal principles • Strict liability = no analysis of intent • Joint & several liability = once you’re in, you’re in for it all • Retroactive (doesn’t matter when release occurred) • Liability imposed on: (1) owners / operators of contaminated property; (2) generators / arrangers; and (3) transporters of hazardous substances • Potentially Liable Parties (PLPs) • Never forget the “potentially” in PLP • Covers all “releases” of hazardous substances • Broad - no requirement of “active” or “intentional” conduct • Limited judicial appeals • No pre-enforcement review • Severe penalties for failure to comply • $10,000 a day + possible treble damages

29. Model Toxics Control Act • Parties who are not liable • Innocent landowners • “Plume clause” candidates • Lenders / mortgage holders • Victims of Act of God or Act of War • Victims of acts of third parties (sabotage) • Releases solely from application of pesticides • De minimis (liable, but for a finite amount) • Passive Migration??

30. Model Toxics Control Act • Recovering costs / funding • Private contribution actions • State Toxics Control Account (STCA) • Funded by Hazardous Substance Tax on petroleum products, pesticides, and chemicals (8,000 products) • Also receives money from cost recovery, fines, penalties, fees, etc.. • Local Toxics Control Account (LTCA) • Supported in same way • For use by local jurisdictions to assist with cleanups

31. Model Toxics Control Act • Cleanup Standards • Set by Department of Ecology – Chapter 173-340 WAC • Goal = protection of human health and environment • Use of permanent solutions to maximum extent practicable • Cost / Benefit Analysis (disproportionality test) • Maintains compliance with “Applicable Relevant & Appropriate Requirements” (ARARs) • Cleanup must meet all regulatory standards found in other environmental pollution control statutes • Covers Underground Storage Tanks (USTs) and Leaking Underground Storage Tanks (LUSTs) • New rules adopted in 2002 • New standards of TPH, Arsenic, Lead, etc… • New requirements to facilitate redevelopment of property • Incorporation of permit requirements into the cleanup action plan

32. Model Toxics Control Act • Cleanup standards - “How Clean is Clean?” • Essentially, must remediate to the point that the remaining contamination no longer poses an unacceptable threat to human health and the environment • Each medium receives a “Cleanup Level” • Must achieve cleanup level at a “Point of Compliance” • Specific substances • Carcinogens must be cleaned to below a level that could cause an excess cancer risk in humans • Non-carcinogens must be cleaned to below a level that could cause illness in humans • Combination substances must be cleaned to below a level that could impact terrestrial or aquatic receptors

33. Model Toxics Control Act • Cleanup standards • Method A – for the straightforward cleanup • Provides numerical cleanup levels for 25-30 of the most common hazardous substances • Numerical levels set in the regulations • Method B – for the more complex cleanup • Most common method for sites with unusual substances or combinations of substances • More stringent cleanup standards • Sets human-health risk levels for particular substances • Must assess impact on terrestrial ecological receptors • Method C – for every other kind of cleanup • When Method A or B levels are not technically possible • Similar to Method B levels of calculating cleanup levels • Less stringent exposure assumptions – good for industrial sites

34. Model Toxics Control Act • Usual chain of events • Initial investigation + site hazard assessment (1 to 5) • Inclusion on state site hazard list • Identification of PLPs • Phase I & II site assessments (optional) • Determine contaminants and scope of contamination • Remedial Investigation / Feasibility Study (RI/FS) • Determine where contamination has come to be located • Cleanup action plan / interim actions • Long-term monitoring / no further action • Land use restrictions (restrictive covenant / zoning overlay) • Implementation • Agreed order or consent decree • CD provides covenant not to sue and contribution protection • Enforcement orders (last resort or emergency situation)

35. Model Toxics Control Act • Enforcement provisions • Citizen suits • To force ecology to perform a non-discretionary duty • Direct suits against Ecology • Must give notice of intent to sue • Petition for reimbursement • PLP pays money, then asks for it back, and can then sue once Ecology refuses • Counter-claim to Ecology suit • Challenges reviewed under “arbitrary and capricious” standard • Liability / PLP determinations are reviewed “de novo” • No other way to get to court

36. Model Toxics Control Act • Brownfields / Redevelopment of Contaminated Property • Not statutory! • Criteria for brownfields redevelopment • Yields substantial new resources to facilitate cleanup • Expedites cleanup • Redevelopment will not further contribute to release of waste, impede remedial actions, or increase health risks • Prospective Purchaser Agreements (PPA) • Settlement with a non-liable party who wishes to purchase contaminated property, clean it up, and redevelop it • Only 13 since 1986, and not binding on EPA • Successor” liability protection for the purchaser of property • Brownfields funding • $$ grants from EPA supervised by Office of Trade & Economic Development (OTED) • Expanded technical assistance available

37. Model Toxics Control Act • Voluntary cleanup program • For “simple sites” (gas stations, single-contaminants, etc…) • Independent cleanup with limited Ecology oversight • Must obtain Ecology approval at end of process to ensure that the cleanup performed is the “substantial equivalent” of an Ecology-supervised cleanup • Cost-effective (don’t pay for Ecology’s oversight costs) • Current / future trends • Constitutional challenges • Area-wide contamination • Complex cleanups (Spokane River, Mining Sites, Duwamish Waterway, Lake Roosevelt, ASARCO) • New regulations • New standards & “remediation levels” & Financial Assurance • Model remedies?

38. Hazardous Waste Management Act • State system for enforcement of RCRA • Federally delegated program • Equivalent or more stringent than federal RCRA • Provides “cradle-to-grave” regulation of hazardous waste and dangerous waste • Pre-empts local governments from regulating hazardous waste facilities • VERY CONFUSING • Does not cover domestic sewage, wastewater discharges, agricultural waste, asphalt or wood waste, recycled oil filters, etc.. • Recyclables (oil, anti-freeze, E-waste)

39. Hazardous Waste Management Act • Definitions • Dangerous Waste = all discarded or abandoned materials which pose a hazard to human health and environment • Extremely Hazardous Waste = all dangerous waste which: • will persist; • presents a significant environmental hazard; • is highly toxic; • Hazardous Waste = all dangerous waste that “designates” as hazardous waste and all extremely hazardous waste • Listed by adopted regulations • Meets 1 of 4 characteristics: ignitability, reactivity, corrosivity, or toxicity • “Contained in” Waste = for complex mixtures

40. Hazardous Waste Management Act • More stringent that RCRA (broader, less exemptions) • Governs all “Treatment, Storage, & Disposal” Facilities (TSDs) • Enforces the “land ban” • Includes both civil and criminal enforcement power • “Manifest” requirements for all transportation of hazardous waste • Small Quantity Generators and Generators of Household Wastes are Exempt from most requirements (Rule of 22) • TSD permits for facilities • Meets basic minimum technical standards (liners, GW monitoring, etc…) • “Clean Closure” requirements • Financial assurance requirements • Prevents the “dump and run”

41. Hazardous Waste Management Act • Corrective Action • Ecology can order TSD to address pre-existing or recently-caused contamination • Covers any hazardous substance released at a TSD • Can go beyond the TSD property boundary • Corrective Action performed primarily through a Joint MTCA / RCRA Corrective Action Order • RCRA requirements enforced with overlay of MTCA cleanup standards • Regulation vs. Enforcement / Liability

42. Forest Practices Act • Goal • Sound natural resource protection • Maintenance of forest products industry • Protection of soils, water quality, recreation, scenic beauty, species, etc… • Creation of Forest Practices Board • 11 members • Ecology, Public Lands, CTED, Agriculture, Elected County Legislator, 5 public landowners appointed by the Governor • No local governmental control over forest practices

43. Forest Practices Act • Adoption of Forest Practice Rules • Class I – forest practices that have no direct potential for damaging a public resource • No application or permit needed • Class II – forest practices which have a less than ordinary potential for damaging public resource • May be conducted 5 days after notification with no application or permit needed

44. Forest Practices Act • Adoption of Forest Practice Rules • Class III – anything outside I and II • Must be approved by DNR within 30 days of receipt of application • Class IV – anything outside I and II where a potential for substantial impact is noted • Environmental Impact Statement (EIS) required if DNR determines it to be necessary (all other classes exempt from SEPA) • Must be approved by DNR after EIS and within 30 days of receipt of application

45. Forest Practices Act • Reforestation • Must occur within 3 years after forest activities completed • DNR must review and approve reforestation activities, or additional activities may be required • Conversion • Must notify DNR if land to be forested will be converted to a use other than commercial timber production within 3 years • If so, reforestation requirements do not apply • Enforcement • Includes water quality and forest resource damages • Can include a lien against the property

46. State Environmental Policy Act • Modeled after NEPA • Commits all agencies of state & local government to maintain and improve environmental quality • Full compliance with procedural requirements • Recognition of each person’s fundamental and inalienable right to a healthful environment • Ministerial decisions become discretionary based on environmental consequences • Alternatives must be reviewed, proposed, and analyzed • No substantive requirements • BUT the procedural requirements are significant determinants of substantive decision-making

47. State Environmental Policy Act • How it works • Submitting a proposal for development triggers SEPA requirements • Threshold determination • Documented through an environmental checklist • Primary source of info + documentation repository • Determination of significance - DS • Reversed on appeal? Only if “arbitrary & capricious” • Determination of non-significance - DNS • Must be based on demonstration that environmental factors were considered to establish prima facie compliance • Reversed on appeal? Only if “clearly erroneous” • Mitigated determination of non-significance - MDNS • Stopping impacts ahead of time • Can be very controversial – removes public input

48. State Environmental Policy Act • Determination of Significance • If any action might significantly impact the environment • Very low standard (any moderate effect) • Focus on intensity of development and vulnerability of affected environment • No analysis of socio-economic benefits • No analysis of alternatives at this stage • Begin the scoping process (gathering all documentation) • Prep for the Environmental Impact Statement (EIS) • Notification to any affected party for review & comment

49. State Environmental Policy Act • Environmental Impact Statement • Provides more intense environmental scrutiny of project • Elements = explain the project, the impacts, the alternatives, the short and long term consequences, and the resource commitments • Adequate? Governed by the “rule of reason” • Case by case review • Determine if effects and alternatives are sufficiently disclosed and substantiated • De novo review by court (no deference) • Must do Supplemental EIS if substantial changes proposed to project or new data is uncovered related to potential environmental impacts • You can use pre-existing or existing documentation in certain circumstances (no requirement of redundancy)

50. State Environmental Policy Act • Effects on substantive agency action • SEPA is stronger than NEPA • Local government can deny if SEPA identifies significant environmental impacts that cannot be mitigated under any proposed alternative • 3 primary effects • Must interpret and administer all state laws in accordance with SEPA • Supplements environmental decision-making authority • Judicially enforceable substantive standards on government action / decision-making