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PO Box 40117
Olympia, WA 98504-0117
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Overview
The Ecology Division is comprised of 25 attorneys and 14 professional staff. The division represents the Department of Ecology, Puget Sound Partnership, Pollution Liability Insurance Agency and the State Conservation Commission.
The division works to resolve environmental problems and disputes using a variety of legal tools, including negotiation, multi-party mediation and litigation, when necessary. Division attorneys provide advice on a broad spectrum of matters, including permitting, legislation, rule-making and enforcement. The division’s practice includes hearings before administrative boards, as well as trials and appeals before state and federal courts.
General Practice Areas
Areas of significant division workload include assisting the Department of Ecology (Ecology) on water allocation and management, the oversight of the United States Department of Energy’s (DOE) cleanup of the hazardous and radioactive waste at Hanford and the cleanup of contaminated sites. Other work areas include: stormwater regulation, regulation of hydroelectric dams, air quality (including climate change) and implementation of shoreline management guidelines.
Water Resources: Cases and advice in this area include matters involving water right permit decisions, rules and enforcement actions, as well as general stream adjudications. In the area of litigation, division attorneys are currently litigating issues related to enforcement, instream flow regulation, tribal water rights and cases involving the change or transfer of existing water rights. In the state’s longest running general adjudication addressing water rights in the Yakima River basin (initiated in 1977), the division is representing the state in the State Supreme Court in a final phase of the case.
Attorneys from the division and Solicitor General’s Office developed a water law treatise to summarize many aspects of Washington water law. An Introduction to Washington Water Law
Water Quality and Spill Prevention Work: The division’s water quality practice involves a significant amount of work providing advice on permit actions and defending challenges to Ecology’s permit decisions. This includes enforcement actions, such as orders and penalties that are subject to administrative hearings and judicial review. The division also assists Ecology in its efforts to address non-point source pollution, including Ecology’s implementation of the Total Maximum Daily Load requirements of the federal Clean Water Act. A significant component of the division’s water quality work is associated with advising and defending Ecology’s decisions regarding the regulation of stormwater discharges from municipal, industrial and construction activities. For the spill prevention program, division attorneys represent Ecology in enforcement actions against companies responsible for oil spills and are assisting Ecology in development of rules governing the contingency plans in response to 2011 state legislation calling for strengthening certain requirements, such as oil spill preparedness standards.
Hazardous Waste Management and Cleanup: In this area of the division’s practice, assistant attorneys general negotiate and enforce consent decrees and orders that require cleanup of sites contaminated with hazardous substances and in some cases that require compensation for impacted natural resources. The division also defends Ecology's permit decisions and enforcement actions against facilities that generate, treat or dispose of hazardous waste in order to prevent the creation of more contaminated sites.
Shorelines: Division attorneys are involved in resolving Shoreline Management Act disputes at all levels of administrative and judicial review. The primary cases handled in the Ecology Division in this area are Shoreline Hearings Board appeals of Ecology actions regarding local government shoreline permit decisions. The division's work also includes assisting Ecology with review of shoreline master program updates by cities and counties across the state.
Air Quality: In this area, the division defends Ecology's permit decisions and enforcement actions, and also represents the state in multi-state efforts aimed at addressing federal Clean Air Act requirements, including requirements related to the regulation of greenhouse gases. Division attorneys also advise on major rulemaking efforts, such as implementation of California's "clean car" standards, (which Washington adopted in 2006), and environmental review obligations related to projects that emit significant amounts of greenhouse gases.
Environmental Bankruptcy: The division represents Ecology in bankruptcy proceedings in which the debtors attempt to abandon contaminated property or transfer the property free and clear of significant environmental liabilities or, through the bankruptcy process, seek to quantify and resolve outstanding environmental liabilities. The division's aim in each of these proceedings was to avoid creating “orphan” sites and to ensure that satisfaction of environmental liabilities is a condition of any protection granted by the bankruptcy courts. In one such case, the Asarco bankruptcy proceeding, the division secured a payout of $166 million to address the environmental legacy of the company’s smelter and mining activities across Washington state.
Other: Division attorneys also work in a number of other areas, including the regulation of water well drillers, solid waste management and environmental review of significant projects under the state Environmental Policy Act. The area of hydroelectric dam regulation has been an increasing focus of the division, and the work has extended beyond Washington cases to coordinating national efforts to protect state authority in this area.
Five Corners Family Farmers v. Department of Ecology: This case involved interpretation of the groundwater permit exemption for new stock water uses found in the state’s Ground Water Code. The State Supreme Court ruled in favor of the state and held that the stock watering exemption is not subject to a 5,000 gallon per day quantity limit. The court held that the “plain language” of RCW 90.44.050 is unambiguous and subject to one reasonable interpretation. Under this interpretation, RCW 90.44.050 expressly provides four separate exemptions from permitting: a) stock watering (with no quantity limit); b) watering of a lawn or of a non-commercial garden not exceeding one-half acre in area; c) single or group domestic use not exceeding 5,000 gallons per day; and d) industrial use not exceeding 5,000 gallons per day. As such, when the law was passed in 1945, the legislature chose not to impose any quantity limit for stock watering.
Coalition for Responsible Regulation, Inc., et al. v. EPA: Washington was part of a group of states that intervened in these consolidated cases in support of United States Environmental Protection Agency (EPA) rules enacted to regulate greenhouse gases. The challenged rules included: (1) a rule announcing EPA’s formal finding under CAA, Section 202 that greenhouse gas emissions from motor vehicles present a danger to human health and welfare (Endangerment Finding), and (2) a rule adopting a greenhouse gas emission standard under Section 202 for light duty motor vehicles (Tailpipe Standard). The Tailpipe rule requires average fleet-wide, greenhouse gas emissions to equal those associated with about 35 mpg beginning with the 2016 model year. The court found that (1) the Endangerment Finding and Tailpipe Standard were neither arbitrary nor capricious; and (2) EPA’s interpretation of governing CAA provisions was unambiguously correct. EPA’s adoption of the motor vehicle emission standard was the federal agency’s first significant regulatory step taken to require reductions in greenhouse gas emissions following the United States Supreme Court’s 2007 landmark Massachusetts v. EPA decision which confirmed EPA’s authority to regulate greenhouse gases.
Yucca Mountain Litigation: Through the Nuclear Waste Policy Act (NWPA), Congress sought to ensure scientific, merits-based siting of a national nuclear waste repository. The Department of Energy (DOE) spent over 15 years and billions of dollars investigating the feasibility of Yucca Mountain, Nevada, as the nation’s repository site, and in 2008 a license application to construct the facility was submitted to the Nuclear Regulatory Commission (NRC).
In January 2010, however, DOE announced its intent to withdraw its license application and forever terminate Yucca Mountain from consideration as a permanent repository. In March 2010, DOE formally moved to withdraw the application and began dismantling the infrastructure of the Yucca Mountain project.
Washington has a strong interest in this matter because Yucca Mountain has been the presumptive end destination for the high-level nuclear waste currently stored at Hanford. DOE is currently constructing a $12.3 billion Waste Treatment Plant to vitrify this waste to meet Yucca Mountain standards.
A number of lawsuits and administrative proceedings have been pursued. In a case before the NRC, the state was successful in obtaining a ruling confirming that DOE lacks the authority under the NWPA to withdraw its Yucca Mountain license application from the NRC licensing proceeding. Nonetheless, both DOE and NRC proceeded to dismantle the licensing proceeding. The state and several other petitioners challenged these actions in federal court. State attorneys presented argument to the D.C. Court of Appeals in May 2012 in an action that seeks an order directing NRC to resume the Yucca Mountain licensing proceeding.
Hanford Site Clean-Up: Hanford site clean-up has been the subject of numerous lawsuits and agreements all intended to expedite the clean-up of this highly contaminated site. In 2008, the state again filed suit, alleging that the U.S. Department of Energy (DOE) had and would violate key compliance milestones in the Hanford Federal Facility Agreement and Consent Order (Tri-Party Agreement). These key milestones relate to treating all of the stored high-level tank waste (including building and commencing operation of a Waste Treatment Plant) and retrieving waste from Hanford’s 149 aging underground single-shell tanks (SSTs).
In 2010, the case was settled with a new consent decree between Washington and DOE and agreed-upon amendments to the Tri-Party Agreement. The terms of the settlement include consent decree requirements to empty 19 single-shell tanks by 2022 (the first 10 must be emptied by 2014), complete construction of the Waste Treatment Plant (hot start by 2019, and full operation by 2022), and Tri-Party Agreement requirements that all tanks be retrieved by no later than 2040 and all waste treated by no later than 2047. Recent communications from DOE and DOJ warn that DOE may be unable to meet consent decree and agreement milestones due to lack of funding and technical issues. The state is working to obtain additional information regarding this development.
Teck Cominco Metals, Ltd.: This case arises out of a Canadian company’s contamination of the Columbia River and Lake Roosevelt. The state intervened in this citizen suit brought by the confederated Tribes of the Colville Reservation against Teck Cominco Metals, Ltd., to enforce a CERCLA order issued by EPA that required investigation of contamination in the United States (the Upper Columbia River Site) caused by discharges from Teck’s smelter in Canada.
This case has a long procedural history, with the Tribe and the state winning most of the pre-trial motions. The federal district court recently struck Teck’s defense that liability at the site was divisible, not joint and several. Trial on Teck’s liability is scheduled for September 2012.
Yakima River Basin General Adjudication: This case, filed in 1977, concerns adjudication of approximately 40,000 claimed rights to surface waters in the Yakima Basin. The adjudication was recently concluded with the entry of the Conditional Final Order (CFO) for Subbasin 23, the final sub-proceeding to be decided in this case. Each of the major entities involved in Subbasin 23 and several individuals have appealed the CFO. The appeal will be argued to the State Supreme court in September 2012.