Letter Opinion 1972 No. 001

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                                                                  January 4, 1972

Honorable John A. Biggs
Director, Department of Ecology
Box 829
Olympia, Washington 98504                                                                                              Cite as:  AGLO 1972 No. 1 (not official)

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions regarding the legal authority of the State of Washington to carry out an implementation plan to be submitted to the Environmental Protection Agency (EPA) pursuant to Sections 107 and 110 of the Federal Clean Air Act.  We paraphrase your questions as follows.

            Does the state have legal authority to:

            (1) Adopt emission standards and limitations and any other measures necessary for attainment and maintenance of national standards?

            (2) Enforce applicable laws, regulations and standards, and seek injunctive relief?

            (3) Abate pollutant emissions on an emergency basis to prevent substantial endangerment to the health of persons, i.e., authority comparable to that available to the Administrator under Section 303 of the Clean Air Act, as amended?

            (4) Prevent construction, modification or operation of any stationary source at any location where emissions from said source will prevent the attainment or maintenance of a national standard?

            (5) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require record-keeping and to make inspections and conduct tests of air pollution sources?

            (6) Require owners or operators of stationary sources to install, maintain, and use emission-monitoring devices and to make periodic reports to the state on the nature and amounts of emissions from such stationary sources; also authority for the  [[Orig. Op. Page 2]] state to make such data available to the public as reported and as correlated with any applicable emission standards or limitations?

            We answer your questions (1) through (5) in the affirmative.  Question (6) is answered in the affirmative with the exception of some qualification with respect to the authority of the state to make reported emission data available to the public.  The reasons for these responses are set forth in our analysis.

                                                                     ANALYSIS

            The Federal Clean Air Act, (42 U.S.C. 1857-18571), as amended by Public Law 91-604 (84 Stat. 1676), (hereinafter referred to as the Federal Act), requires that within nine months after promulgation of a national primary ambient air quality standard,1/ each state shall adopt and submit to the Environmental Protection Agency, a plan for the implementation, maintenance and enforcement of the federal standard.  Six such standards were promulgated by publication in the Federal Register on April 30, 1971 (36 Fed. Reg. 8186, 42 C.F.R. 410).  Subsequently on August 14, 1971, the Environmental Protection Agency published in the Federal Register, rules and regulations for the preparation, adoption and submittal of implementation plans (36 Red. Reg. 15486, 42 C.F.R. 420).  Among the items required was a statement of state legal authority to perform the various functions set forth in your six questions (42 C.F.R 420.11 (a)).

            Prior to discussing the questions asked, some background regarding the statutory framework for air pollution control in the State of Washington should be provided.  Under the Washington Clean Air Act (Chapter 70.94 RCW) (hereinafter referred to as the State Act), there is a distribution of responsibilities between state, regional and local units of government.2/   In general, the State Act provides that the state can perform all authorized functions in air pollution control, but that regional or local authorities  [[Orig. Op. Page 3]] with jurisdiction over specific areas within the state can be activated and enforce state regulations or perform regulatory roles based on their own standards and control procedures, provided that such standards and procedures are equal to or more stringent than those adopted by the state.  (See RCW 70.94.331, 70.94.141, 70.94.380, RCW 70.94.395.)

            With respect to state responsibilities, the distribution of authority as it appears in the State Act was changed by the 1970 legislature when a new department of ecology was created.  The department of ecology, by virtue of chapter 43.21A RCW succeeded to the powers, duties and functions formerly authorized to be performed in the air pollution area by the state air pollution control board and the department of health.  The Act creating the department of ecology left intact the regional and local air pollution control authorities.  Thus now whereever the terms "State Board" or "Department" appear in the State Act, the reference effectively is to the newly created department of ecology.  Further, in 1971, the legislature repealed RCW 70.94.250 which exempted certain types of outdoor fires from the State Act.  Chapter 232, Laws of 1971, First Extraordinary Session, established permit programs for such fires and granted new responsibilities to the state department of natural resources to enforce the State Act.

            Question (1):

            General authority to adopt emission standards and limitations and other measures necessary for the attainment and maintenance of national standards is contained in RCW 70.94.331, RCW 70.94.141 and Section 3, Chapter 232, Laws of 1971, First Extraordinary Session.  Relevant portions of these statutory sections are quoted:

            RCW 70.94.331:

            (1) The state board shall have all the powers as provided in RCW 70.94.141.

            (2) The state board, in addition to any other powers vested in it by law after consideration at a public hearing held in accordance with chapter 42.32 RCW and chapter 34.04 RCW shall:

            (a) Adopt rules and regulations establishing air quality objectives and air quality standards; (b) Adopt emission standards which shall constitute minimum emission standards throughout the state.  An authority may enact more stringent emission standards, but in no event may less stringent standards be enacted by an authority without the prior approval of the state board after public hearing and due notice to interested parties; (c) Adopt by rule and regulation air quality standards and emission standards 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  [[Orig. Op. Page 4]] of classification by types of emissions or types of sources of emissions, or combinations thereof, which it determines most feasible for the purposes of this chapter.

            (3) The air quality standards and emission standards 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 and meteorologic conditions and other pertinent variables.

            (6) The state board 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 70.94.141:

            The board of any activated authority in addition to any other powers vested in them by law, shall have power to:

            (1) Adopt, amend and repeal its own ordinances, resolutions, or rules and regulations, as the case may be, implementing this chapter and consistent with it, after consideration at a public hearing held in accordance with chapter 42.32 RCW.

            (3) Issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings subject to the rights of appeal as provided in chapter 62, Laws of 1970 1st ex. sess.3/

            Sec. 3, Chapter 232, Laws of 1971, 1st ex. sess.

            The department of natural resources in granting burning permits for . . . (outdoor fires associated with fire prevention and silvicultural operations) shall condition the issuance and use of such permits to comply with air quality standards established by the department of ecology after full consultation with the department of natural resources.

             [[Orig. Op. Page 5]]

            Question (2):

            The basic pattern of control followed by the State Act is to provide for the establishment of general rules and regulations governing emissions and air quality, as discussed above, and to deal with exceptional situations through variance permits.  Variances may be granted by the department of ecology or by regional or local air pollution control authorities, depending on which regulatory agency has enforcement responsibility for the applicant.

            Variance procedure is specified in RCW 70.94.181, requiring a public hearing on all variance applications and the granting of variances only on finding that emissions do not endanger public health or safety and that compliance with applicable rules would produce serious hardship without equal or greater benefits to the public.

            Except where specified in a variance permit, it is unlawful for any "person"‑-a term defined to include corporations and other collective entities by RCW 70.94.030 (3)‑-knowingly to cause air pollution or knowingly to permit it to be caused in violation of the State Act or any ordinance, resolution, rule or regulation validly promulgated thereunder (RCW 70.94.040.).

            Complementing this regulation/variance pattern are permit systems applicable to specific kinds of burning.  Chapter 232, Laws of 1971, First Extraordinary Session, requires that a person setting fires in the course of weed abatement, instruction in methods of fire fighting (except forest fires) or disease prevention relating to agricultural activities must obtain a permit from the department of ecology or a regional or local air pollution control authority.  Burning activities relating to abating a forest fire hazard, prevention of a fire hazard, instruction of public officials in methods of forest fire fighting and any silvicultural operation to improve forest lands are subject to a permit program administered by the department of natural resources.4/

             Violations of the program of control implemented through regulations, variances and permits are subject to a variety of civil enforcement actions.  Whenever the department of ecology has reason to believe that any provision of the State Act or any rule or regulation enforced by the state has been violated, written notice may be served on the alleged violator specifying the alleged violation.  Such notice may include an order that necessary corrective action be taken within a reasonable time or may require that the  [[Orig. Op. Page 6]] alleged violator appear for a hearing to answer the charges complained of (RCW 70.94.332).  Regional or local authorities have the same powers to issue notices and orders by virtue of RCW 70.94.211.

            Additionally, the state and regional or local authorities may, under RCW 70.94.431, levy civil penalties against persons who have violated any provision of the State Act or rules or regulations thereunder.  The penalty is in the form of a fine in an amount not to exceed $250 per day for each violation.  Each violation shall be a separate and distinct offense, and in case of a continuing violation, each day's continuance is a separate offense.  Further, each act of commission or omission which procures, aid or abets in a violation is considered a violation subject to the same penalty.

            Another section, RCW 70.94.435, provides a mechanism for an assurance of discontinuance of any act or practice deemed in violation of the State Act or any rule or regulation adopted pursuant thereto.  Under this section, any person who has engaged in a proscribed practice may submit an assurance that such practice will be discontinued.  Thereafter, failure to perform the terms of the assurance constitutes prima facie proof of a violation and makes the alleged act or practice unlawful for the purpose of securing an injunction or other relief from a superior court.

            Injunctive relief may be sought by either the department of ecology or regional and local authorities.  Under RCW 70.94.425, whenever any person has engaged in or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of the State Act or any rule or regulation issued thereunder, after notice to the person and an opportunity to comply, a petition may be filed in superior court of the county where the violation is alleged to be occurring or to have occurred, for a restraining order or a temporary or permanent injunction or another appropriate order.  This particular remedy is available notwithstanding the existence of use of any other remedy provided for under the State Act.

            Apart from the above specific varieties of enforcement actions.  RCW 70.94.141 (3), quotedsupra, provides general authority for the department of ecology and regional or local enforcement entities to issue such orders as may be necessary to effectuate the purposes of the State Act.  This would include orders revoking or suspending permits.5/

             All administrative decisions and orders issued by the department of ecology or regional or local authorities are appealable to a Pollution Control Hearings Board, a separate state agency established by chapter 43.21B RCW.

             [[Orig. Op. Page 7]]

            Finally, violation of the State Act or any rules or regulations in force pursuant thereto may be subject to criminal sanctions.  Any such violation, by virtue of RCW 70.94.430, is a gross misdemeanor, punishable by a fine of not less than $100 nor more than $1000 or by imprisonment for a term of not more than one year or by both fine and imprisonment.

            Question (3):

            The 1971 legislature amended the State Act to provide state authority to abate pollutant emissions on an emergency basis to prevent substantial endangerment to health.  Chapter 194, Laws of 1971, First Extraordinary Session, repealed RCW 70.94.415, the previous emergency section, and set for the framework for the adoption of a state emergency episode plan.  The legislature made a finding that whenever meteorological conditions occur which reduce the effective volume of air into which air contaminants are introduced, there is a high danger that normal operations of air contaminant sources in the area affected will be detrimental to public health or safety.  Such conditions are denominated air pollution episodes and whenever they are forecast, the legislature declared there is a need for short-term emission reduction in order to avoid adverse health and safety consequences.  The particular means selected for such a rapid short-term emission reduction is the declaration of a series of episode stages, each triggering the implementation of a series of pre‑planned emission reduction steps according to source emission reduction plans approved for individual air pollution sources.

            There are four stages of any air pollution episode:  forecast, alert, warning, and emergency.  The forecast stage means the presence of meteorological conditions that are conducive to the accumulation of air contaminants and may be declared on the basis of weather service advisories.  The alert stage means a concentration of air contaminants at levels at which short-term health effects may occur.  The warning stage means concentrations are continuing to degrade and contaminant concentrations have reached the level which, if maintained, can result in damage to health.  The emergency stage means the air quality is posing an imminent and substantial endangerment to public health.

            The first three of these stages, forecast, alert and warning, can be declared by the director of the department of ecology or his authorized representative when conditions match criteria to be declared by regulation.  The emergency stage can only be declared by the governor, or in his absence, his authorized representative, based on criteria likewise to be set forth by regulation.  Provision is made for the enforcement of any orders issued during an emergency episode by personnel of the state department of social and health services, the state police, the department of ecology and local air pollution control agencies and local police.6/

             [[Orig. Op. Page 8]]   The declaration of any particular stage of an episode is an order for action in accordance with applicable source emission reduction plans.  Sources of air pollution are to submit source emission reduction plans to the department and receive the department's approval.

            Regardless of whether any episode stage has been declared, the governor, when he finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to public health or safety, may declare an air pollution emergency and order the person or persons responsible for the air contamination to reduce or discontinue emissions consistent with good operating practice and safe operating procedures.

            Chapter 194,supra, further provides that, on the declaration of a stage or the issuance of any order declaring an air pollution emergency, the attorney general may, upon the request of either the director of the department of ecology or the governor, go into court and petition for a temporary restraining order requiring the immediate reduction or discontinuance of emissions from named sources.  In no case are the regulatory actions pursuant to an episode to be stayed pending review.  Any order or injunction is to be effective immediately.

            The department of ecology, by appropriate notice, has as of this writing, proposed a regulation implementing the legislative direction to establish en emergency episode plan.  This regulation, proposed as new Chapter 18-08 Washington Administrative Code (WAC), will provide specific air contaminant concentrations for various episode stages and set forth the general plan for enforcement procedure.

            Question (4):

            Authority to prevent construction, modification or operation of any stationary source at any location is provided by RCW 70.94.152.  That section in pertinent part reads:

            (1) The state board or board of any authority may require notice of the construction, installation or establishment of new air contaminant sources specified by class or classes in its ordinances, resolutions, rules or regulations relating to air pollution. . . .  (A)ny such notice given to either the board or to the state board shall preclude a further notice to be given to any other board or to the state board.  Within thirty days of its receipt of such notice, the state board or board may require, as a condition precedent to the construction, installation or establishment of the air contaminant source or sources covered thereby, the submission of plans, specifications, and such other information as it deems necessary in order to determine whether the proposed construction, installation or establishment will be in accord with applicable rules and regulations in force pursuant to this chapter.  If within thirty days of the receipt of plans, specifications or other information required pursuant to this section the state board  [[Orig. Op. Page 9]] or board determines that the proposed construction, installation or establishment will not be in accord with this chapter or the applicable ordinances, resolutions, rules and regulations adopted pursuant thereto, it shall issue an order for the prevention of the construction, installation or establishment of the air contaminant source or sources.  Failure of such order to issue within the time prescribed herein shall be deemed a determination that the construction, installation or establishment may proceed:  PROVIDED, That it is in accordance with the plans, specifications or other information, if any, required to be submitted.

            (2) For the purposes of this chapter, addition to or enlargement or replacement of an air contaminant source, or any major alteration therein, shall be construed as construction or installation or establishment of a new air contaminant source.

            The nub of this section is authority to prevent construction when the proposed installation will violate any rules or regulations.  Assuming that rules and regulations for air pollution control are or will be designed to attain and maintain the national primary ambient air standards, if it appeared that any new source, as defined, was going to violate such standards, the department or a local or regional authority would have the ability to prevent its construction.

            Question (5):

            Power to obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations and standards is granted by RCW 70.94.331 (5); RCW 70.94.200; RCW 70.94.151 (2); RCW 70.94.141 (4); and Chapter 160, Laws of 1971, First Extraordinary Session, the Pollution Disclosure Act of 1971.

            By RCW 70.94.331 (5) the department of ecology is directed to conduct or "cause to be conducted" a continuous surveillance program to monitor air quality.7/   The phrase "cause to be conducted" reasonably imparts authority to require air pollution sources to record and submit information.

            RCW 70.94.200 empowers authorized officials to enter at reasonable times upon private or public property, excepting nonmultiple unit private dwellings housing two families or less, for the purpose of "investigating conditions" specific to the control, recovery or release of air contaminants into the atmosphere.  No person shall refuse entry to an inspector presenting proper credentials, nor interfere with any inspection.  The authority granted is to investigate conditions, not simply to inspect, and should comprehend the conduct of tests of air pollution sources.

             [[Orig. Op. Page 10]]

            Sources of air pollution may be required, by virtue of RCW 70.94.151 (2), to register with and report to, the department of ecology or a regional or local authority.  Such registration and reporting may necessitate the submission of information concerning size and height of contaminant outlets, processes employed, nature of contaminant emission, and other data relevant to air pollution.  The department, by appropriate notice, has indicated its intention to implement this statutory section through a portion of a new regulation proposed as new Chapter 18-04 WAC.

            RCW 70.94.141 (4) explicitly empowers the department of ecology or a local or regional authority to require access to records, books, files and other information specific to the control, recovery or release of air contaminants into the atmosphere.

           Chapter 160,supra, requires annual reports for commercial or industrial operations discharging wastes into the air.  Such reports must set forth:  (1) the nature of the enterprise; (2) a list of materials used in, and incidental to, its manufacturing processes, including by-products and waste products; (3) the estimated annual total, by appropriate measurement, of wastes discharged.  Failure to submit such reports may result in the imposition of civil penalties, or an injunction against operation of a source.

            Question (6):

            The discussion of question (5) above, adequately shows the authority to require the owners or operators of stationary sources to make periodic reports on the nature and amounts of emissions from such stationary sources.

            Washington statute law does not explicitly empower either the department of ecology or regional or local authorities to require the installation, maintenance and use of emission monitoring devices.  However, when RCW 70.94.331 (5), which directs the department "to conduct or cause to be conducted" a continuous monitoring program, is read together with RCW 70.94.141 (3), which authorizes the issuance of such orders as necessary to effectuate the purposes of the State Act, the requiring of such monitoring devices appears to be within the legislative intent.  Moreover, it is difficult to see how compliance with the pollution disclosure requirements of Chapter 160, supra, could be achieved by any reporting entity without the use of monitoring equipment.

            With respect to authority for the state to make emission data available to the public as reported and as correlated with any applicable emission standards or limitations, two statutory sections are relevant; RCW 70.94.205 and Section 2, Chapter 160, Laws of 1971, First Extraordinary Session; which read as follows:

             [[Orig. Op. Page 11]]

            RCW 70.94.205:

            Whenever any record or other information furnished to or obtained by the state board or the board of any authority pursuant to any sections in chapter 70.94 RCW, relate to processes or production unique to the owner or operator, or is likely to affect adversely the competitive position of such owner or operator if released to the public or to a competitor, and the owner or operator of such processes or production so certifies, such records or information shall be only for the confidential use of the state board or board.  Nothing herein shall be construed to prevent the use of records or information by the state board or board in compiling or publishing analyses or summaries relating to the general condition of the outdoor atmosphere:  PROVIDED, That such analyses or summaries do not reveal any information otherwise confidential under the provisions of this section.

            Sec. 2, Chapter 160, Laws of 1971, 1st ex. sess.

            The department of ecology shall provide proper and adequate procedures to safeguard the confidentiality of manufacturing processes:  PROVIDED, That the confidentiality shall not extend to waste products discharged into the waters or air of the state.

            Presumably the requirement of 42 C.F.R. 420.11 (a) (6) to show state power to make data "available to the public as reported" is designed (pursuant to Sec. 110(a) (2) (F) (iv) of the Federal Act) to provide for a form of indirect regulation of emission sources through publicity.  For this purpose, public identification of an individual source with the data for that source is necessary.

            It is clear that, for the purposes of Chapter 160, supra, data on waste products discharged into the air is not confidential.  The problem, then, is whether data specially relating to the nature and amounts of emissions, identified by individual source and submitted pursuant to chapter 70.94 RCW (the State Act) is to be treated as confidential.  As adverted to in previous discussion, the State Act provides authority for obtaining a variety of information.  Whether emission data can be the kind of information protected from disclosure by RCW 70.94.205 depends on whether such information can ever be construed as relating to "processes or production unique to the owner or operator of . . . likely to affect adversely the competitive position of such owner or operator if released to the public."  This general language resists precise definition.

            The Federal Act in Section 114 (c) provides for public disclosure of reported information except upon a showing that such information, if made public, would divulge methods or processes entitled to protection as trade secrets.  Our conclusion is that the language of RCW 70.94.205 comprehends a broader range of information than that described by the term "trade secrets."  Realistically, any publicity which tends to identify a company in the public  [[Orig. Op. Page 12]] mind as a significant polluter might well tend to adversely affect competitive position.  It would be difficult, indeed, for any state or local administrator to release emission data for a particular source with the assurance that he is not violating the general language of RCW 70.94.205.  Further, such disclosure would mean that the administrator has unilaterally determined a certification made by the submitter of the released information to be fraudulent.

            A fair reading of RCW 70.94.205 is that it reveals a legislative intent to limit public disclosure of reported information narrowly.  The section contains broad language regarding what is to be considered confidential.  The section explicitly authorizes disclosure only of analyses or summaries derived from reported information and adds a proviso that such analyses or summaries shall not reveal information otherwise confidential.  Therefore, we conclude that when emission data has been provided pursuant to Chapter 70.94 RCW, there could be cases in which making such data "available to the public as reported" would be prohibited.