Condotta, 122618 WAAGO, AGO 2018-10

Docket Nº:AGO 2018-10
Case Date:December 26, 2018
Court:Washington
 
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The Honorable Cary Condotta
AGO 2018-10
No. 2018-10
Washington State Office of the Attorney General
December 26, 2018
         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.          The Honorable Cary Condotta          State Representative, District 12          PO Box 40600          AGO 2018 No. 10          Olympia, WA 98504-0600          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.          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...

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