Regulation of outdoor burning by the Department of Ecology

DEPARTMENT OF ECOLOGY--FIRE--AIR--POLLUTION--Regulation of outdoor burning by the Department of Ecology.          

RCW 70.94.775 prohibits outdoor burning of certain listed substances as well as any substance that normally emits dense smoke or obnoxious odors.  The Department of Ecology has authority under the Washington Clean Air Act, chapter 70.94 RCW, to adopt a regulation prohibiting the outdoor burning of substances not listed in RCW 70.94.775, if it concludes that the substances emit either dense smoke or obnoxious odors.

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                                                               November 17, 1993

Honorable George L. Sellar
State Senator, District 12
302 Legislative Building, MS 40412                                                     
Olympia, Washington  98504-0412

                                                                                                Cite as:  AGO 1993 No. 17

Dear Senator Sellar:

            By letter previously acknowledged you requested our opinion on a question we paraphrase as follows:

            Does the Department of Ecology have authority under the Washington Clean Air Act, chapter 70.94 RCW, to promulgate a rule prohibiting outdoor burning of materials not specifically listed in RCW 70.94.775?

                                                               BRIEF ANSWER

            RCW 70.94.775 prohibits outdoor burning of certain listed substances as well as any substance that normally emits dense smoke or obnoxious odors.  The Department of Ecology (Ecology) has authority to prohibit outdoor burning of substances that are not listed in RCW 70.94.775, if it concludes that the substances emit either dense smoke or obnoxious odors.  However, Ecology does not have the authority to prohibit burning of any substance that emits any odor, regardless of whether it is "obnoxious".  Although Ecology has the authority to define the term "obnoxious", it does not have the authority to read that term out of the statute.  Ecology also has the authority to prohibit outdoor burning of material that causes toxic emissions since it is responsible for adopting regulations to control air emissions pursuant to RCW 70.94.331.

                                                                BACKGROUND

            Your question arises out of the amendments to chapter 173-425 WAC promulgated by Ecology in 1992, effective on January 1, 1993.[1]  Your inquiry specifically questions Ecology's authority to add by rule to a statutory list of materials subject to the outdoor burning prohibition contained in the Washington Clean Air Act at RCW 70.94.775.

            Before addressing your specific questions, a background discussion of the Washington Clean Air Act and Ecology's role in implementing its provisions is required.

1.         Chapter 70.94 RCW - The Washington Clean Air Act.

            The Washington Clean Air Act (Act), chapter 70.94 RCW, was originally enacted in 1967.[2]  Laws of 1967, ch. 238.  Its purpose was "to secure and maintain such levels of air quality as will protect human health and safety".  Id., § 1, p. 1233.

            The Legislature added the prohibition against open burning of certain materials to the Act in 1973.[3]  Laws of 1973, 1st Ex. Sess., ch. 193, § 9, p. 1441 (codified at RCW 70.94.775), which reads as follows:

                        No person shall cause or allow any outdoor fire:

                        (1)        Containing garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, or any substance other than natural vegetation that normally emits dense smoke or obnoxious odors.

RCW 70.94.775.[4]

            In 1991, the Legislature again amended the Act.  Laws of 1991, ch. 199.  As you correctly note, the language in RCW 70.94.775 remains substantially unchanged.  However, the Legislature made significant changes in the "Public Policy, Findings, and Intent" provision of the Act.  Laws of 1991, ch. 199, § 102, p. 887.

            Since you ask whether WAC 173-425-040[5]"is within the intent of the legislature as expressed in RCW 70.94.775 and any other applicable statutes that WAC 173-425-0[4]0 purports to implement", a review of the Legislature's intent set forth in the Act is appropriate.  While the original purpose of the Act was retained, the new (underlined) language substantially broadens that purpose:

                        It is declared to be the public policy to preserve, protect, and enhance the air quality for current and future generations.  Air is an essential resource that must be protected from harmful levels of pollution.  Improving air quality is a matter of state-wide concern and is in the public interest.  It is the intent of this chapter to secure and maintain levels of air quality that protect human health and safety, including the most sensitive members of the population. . . .

                        It is further the intent of this chapter to protect the public welfare, to preserve visibility, to protect scenic, aesthetic, historic, and cultural values, and to prevent air pollution problems that interfere with the enjoyment of life, property, or natural attractions.

                       . . .Further, it is the intent of this chapter to prevent any areas of this state with acceptable air quality from reaching air contaminant levels that are not protective of human health and the environment.

                       . . .

                        The legislature further recognizes that air emissions from thousands of small individual sources are major contributors to air pollution in many regions of the state.As the population of a region grows, small sources may contribute an increasing proportion of that region's total air emissions.  It is declared to be the policy of the state to achieve significant reductions in emissions from those small sources whose aggregate emissions constitute a significant contribution to air pollution in a particular region.

Laws of 1991, ch. 199, § 102, p. 877.

            Of particular significance to this analysis are (1) the inclusion by the Legislature of "the most sensitive members of the population" in the air quality calculus; and (2) the Legislature's recognition of the cumulative impact on air quality of "thousands of small individual sources" of air emissions.

            In addition to those general findings, the Legislature also added a new section to the outdoor burning provisions of the Act, asserting the policy of the state is "to reduce outdoor burning to the greatest extent practical".  Laws of 1991, ch. 199, § 402(1), p. 916.  The Legislature thus recognized that outdoor burning can interfere with the goal of maintaining and improving air quality.

2.         Ecology's Role under the Clean Air Act.

            The Legislature established the Department of Ecology in 1970 as the "single state agency with the authority to manage and develop our air and water resources in an orderly, efficient, and effective manner."  Laws of 1970, 1st Ex. Sess., ch. 62, § 2, p. 574; AGO 1991 No. 4, at 10-11.  Along with local air pollution control authorities, Ecology is designated under the Act as the agency primarily responsible for implementing programs to control air pollution.  Laws of 1991, ch. 199, § 101, p. 877.

            Ecology's rulemaking authority under the Act is set out in RCW 70.94.331.  That statute provides that Ecology shall have all the powers provided to an air pollution control authority under RCW 70.94.141.  RCW 70.94.331 goes on to state that Ecology, "in addition to any other powers vested in it by law . . . shall:  (a) Adopt rules establishing air quality objectives and air quality standards; (b) Adopt emission standards".  RCW 70.94.331(2).

3.         Outdoor Burning Regulations.

            Ecology's regulation of open burning formerly provided:

                        Prohibited Materials.  Except as provided in WAC 173-425-055, the following materials shall not be burned in any open fire:

                        (1)        Garbage;

                        (2)        Dead animals;

                        (3)        Asphaltic products;

                        (4)        Waste petroleum products;

                        (5)        Paints;

                        (6)        Rubber products;

                        (7)        Plastics;

                        (8)        Treated Wood;[6]

                        (9)        Any substance, other than natural vegetation, which normally emits dense smoke or obnoxious odors.

(Former) WAC 173-425-045.

            The statutory authority for that rule was chapter 70.94 RCW (Clean Air Act) and chapter 43.21A RCW--not solely RCW 70.94.775.  See statutory authority note, following (Former) WAC 173-425-045.

            Following the 1991 amendments to the Act, Ecology repealed WAC 173-425-045[7]and replaced it with WAC 173-425-040, the subject of your question, which provides:

                        Prohibited Materials. (1) Except as provided in WAC 173-425-020(2)[8] the following materials shall not be burned in any outdoor fire:  Garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, paper (other than what is necessary to start a fire), cardboard, treated wood,construction debris, metal or any substance (other than natural vegetation) whichwhen burned releases toxic emissions, dense smoke, or [obnoxious] odors.

State Register 92-24-077 (1992) (new language underlined, deleted language bracketed).[9]

            This new rule adds paper, cardboard, construction debris, and metal to the prior rule's list.  You ask whether that addition is within Ecology's authority, noting that it is not clear that those items "necessarily fall within the statutory prohibition".

            In addition, the new rule adds to the class of banned substances those which, when burned, emit "toxic emissions".   Further, the prohibition extends to any substance that emits odors --not only obnoxious odors.  You have asked whether the above changes embodied in the new rule are consistent with legislative intent and with applicable statutes.

                                                                    ANALYSIS

            The following fundamental rules of statutory construction guide this review of Ecology's rulemaking authority:

            First, a state agency can exercise only those powers granted by statute either expressly or by necessary implication.  McGovern v. Department of Social & Health Servs., 94 Wn.2d 448, 450, 617 P.2d 434 (1980).  Second, an administrative agency cannot modify or amend a statute by regulation; it may draft only those rules which fit within the framework and policy of the applicable statute.  Bird‑Johnson Corp. v. Dana Corp., 119 Wn.2d. 423, 428, 833 P.2d. 375 (1992).  Third, administrative rules and regulations adopted by an agency pursuant to statutory authority are valid if they are reasonably consistent with the statute being implemented, and the intent and purpose of the legislation.  Multicare Med. Ctr. v. Department of Social & Health Servs., 114 Wn.2d 572, 588, 790 P.2d 124 (1990); Anderson, Leech & Morse, Inc. v. Liquor Control Bd., 89 Wn.2d 688, 694, 575 P.2d 221 (1978).  Finally, when an agency interprets the law it administers, courts give substantial weight to the agency's interpretation.  Jane Doe v. Boeing Co., 121 Wn.2d 8, 15, 846 P.2d 531 (1993).  This is particularly true when the agency has expertise in the subject area.  Inland Empire Distrib. Sys., Inc. v. Washington Util. & Transp. Comm'n, 112 Wn.2d 278, 282, 770 P.2d 624 (1989).

            With these rules of statutory construction in mind, we examine the regulations adopted by Ecology to determine if they are consistent with the statute being implemented and the intent and purpose of the Washington Clean Air Act.

            We have previously noted that the statutory authority for WAC 173-425-040 is chapter 70.94 RCW (Washington Clean Air Act), not solely RCW 70.94.775.  State Register 92-24-077 (1992).  Thus, the rule can be sustained if it fits within the framework and policy of the Act as a whole.  Under RCW 70.94.331, Ecology has broad authority to adopt rules relating to air quality and emission standards in addition to the powers granted by RCW 70.94.141.  Asarco, Inc. v. Puget Sound Air Pollution Control Agency, 112 Wn.2d 314, 320, 771 P.2d 335 (1989).

            The revised purpose of the Washington Clean Air Act is "to safeguard the public interest through an intensive, progressive and coordinated state-wide program of air pollution prevention and control".  Laws of 1991, ch. 199, § 102, p. 877.  The legislative policies of the Act include (1) enhancing air quality for current and future generations, to include the most sensitive members of the population in securing safe levels of air quality, (2) preventing air pollution problems that interfere with enjoyment of life, and (3) preventing areas with acceptable air quality from increasing air contaminant levels.  Id.  In addition to the general Public Policy, Findings, and Intent section of the 1991 amendments, the Legislature also added a new policy section to the outdoor burning provisions of the Act "to reduce outdoor burning to the greatest extent practical".  Laws of 1991, ch. 199, § 402(1), p. 916.  Ecology must further the purpose in implementing the Act, and WAC 173‑425‑040 must be measured against these policy provisions.

            We turn now to your specific questions.

            First, you ask whether Ecology has authority to promulgate a rule prohibiting outdoor burning of paper (other than what is necessary to start a fire), cardboard, construction debris, and metal in addition to the list of specific materials subject to the prohibition on outdoor burning in RCW 70.94.775.

            RCW 70.94.775 prohibits outdoor burning of two classes of materials:  a specific list of materials and a general class of prohibited categories of substances (those that, when burned, emit dense smoke or obnoxious odors).

            If Ecology could reasonably conclude that the newly added materials emit either dense smoke or obnoxious odors, the new rule is consistent with RCW 70.94.775.  Under the Act, outdoor burning is defined as "the combustion of material of any type in an open fire or in an outdoor container without providing for the control of combustion or the control of emissions from the combustion."  WAC 173-425-030(10).[10]

            Outdoor burning is subject to regulation under the Act because of its potential effect on air quality.  The Act defines air pollution as:

            [The] presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as is, or is likely to be, [1] injurious to human health, plant or animal life, or property, or [2] which unreasonably interfere with enjoyment of life and property.

Laws of 1991, ch. 199, § 103(2), p. 879 (codified at RCW 70.94.030(2)).

            An "air contaminant" is defined as "dust, fumes, mist, smoke, other particulate matter, vapor, gas,odorous substance, or any combination thereof".  Laws of 1991, ch. 199, § 103(1), p. 879 (codified at RCW 70.94.030(1), emphasis added).  Both smoke and odorous substances are contaminants.  In sufficient quantity, each can injure human health or unreasonably interfere with enjoyment of life.

            Ecology, drawing on its expertise in administering the Act, could reasonably conclude that outdoor burning of the listed substances emits either dense smoke or obnoxious odors, consistent with the prohibition of "any substance other than natural vegetation that normally emits dense smoke or obnoxious odors" in RCW 70.94.775.  That finding is further supported by the Legislature's recognition that multiple small sources of emissions constitute a major contribution to air pollution.  We conclude that RCW 70.94.775 provides Ecology with the authority to include paper, cardboard, construction debris, and metal in its outdoor burning rule.

            Second, you ask whether Ecology has the authority to prohibit outdoor burning of any substances which, when burned, emits odors.  RCW 70.94.775 prohibits any substance that emits obnoxious odors.  As previously noted, the 1991 amendments to the Act did not change the language in RCW 70.94.775.

            The term "obnoxious" is not defined in the statute.  Absent such definition, the term must be given its usual and ordinary meaning.  AGO 1993 No. 1, at 8.  A dictionary frequently cited by Washington courts defines "obnoxious" as "subjected or exposed to harm" or "offensive".  Webster's Third New International Dictionary 1557 (1981).

            Keeping in mind that we must consider legislative intent and read the statute as a whole, Ecology might conclude that outdoor burning of any substance that emits an odor when burned is offensive to, or subjects to harm, some of the most sensitive members of the population.  However, given the fact that RCW 70.94.775 itself prohibits only the burning of substances which release "obnoxious odors", we conclude that Ecology lacks authority to adopt a rule eliminating all references to the modifier "obnoxious" and flatly prohibiting the burning of any substance which releases "odor".  As noted earlier, an administrative agency cannot modify or amend a statute by regulation.  Bird-Johnson Corp. v. Dana Corp., supra.

            Although we conclude that Ecology does not have authority to amend the modifying word "obnoxious" out of the statutory prohibition, Ecology would have considerable authority to define the meaning of "obnoxious".  The broad language of the 1991 amendments (particularly those portions recognizing the cumulative effect of numerous small source emissions on air quality and recognizing the needs of the most sensitive portions of the population) might provide Ecology with guidance on the meaning of the phrase "obnoxious".  We would not presume to suggest particular language, but Ecology would have considerable discretion to define the term "obnoxious" so long as it recognized the word's continuing force as a part of the statute.

            Finally, you question the addition by Ecology of "toxic emissions" to the class of substances banned from outdoor burning in WAC 173-425-040.  RCW 70.94.775 contains no reference to toxic emissions.  Ecology has defined "toxic" to mean "having the properties to cause or to significantly contribute to death, injury, or illness of man or wildlife".  WAC 173‑303-040.

            In its 1991 amendments to the Act, the Legislature specifically found that

                        [o]ver three million residents of Washington state live where air pollution levels are considered unhealthful.  Of all toxic chemicals released into the environment more than half enter our breathing air.  Citizens of Washington state spend hundreds of millions of dollars annually to offset health, environmental, and material damage caused by air pollution.  The legislature considers such air pollution levels, costs, and damages to be unacceptable.

                        It is the intent of this act that the implementation of programs and regulations to control air pollution shall be the primary responsibility of the department of ecology and local air pollution control authorities.

Laws of 1991, ch. 199, § 101, p. 877 (emphasis added).  Barring outdoor burning of any substance that releases toxic emissions comports with that finding and is within the agency's authority under the Act as a whole, including the authority to regulate emissions under RCW 70.94.331.

            Considering the Act as a whole, with its commitment to maintain and improve air quality, its recognition of multiple small sources as a significant potential contributor to pollution, and its directive that the most sensitive members of society be considered, we conclude that, except for deletion of "obnoxious" to modify odors, WAC 173-425-040(1) is consistent with the statutory framework of the Act and with the intent of the Legislature set forth in the 1991 Amendments.

            Ecology's finding that outdoor burning of the materials listed in WAC 173-425-040 violates the policy and intent of the Act is within Ecology's expertise and broad rulemaking authority under the Act.  We conclude that Ecology's interpretation of the Washington Clean Air Act, as reflected in WAC 173-425-040, except for deletion of "obnoxious" to modify odors, advances the Act's fundamental purposes and is supported by the legislative intent as expressed in the Act.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        CAROLE A. RESSLER
                                                                        Assistant Attorney General

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