U.S. v. Hoffman, 76629-1.

• Citation: 116 P.3d 999
• Decision Date: 28 July 2005
• Docket Number: No. 76629-1.,76629-1.
• Court: United States State Supreme Court of Washington
• Parties: Certification from the United States District Court for the Eastern District of Washington in UNITED STATES of America, Plaintiff, and Flour Hanford, Inc., and Tri-City Industrial Development Council, Intervenor Plaintiffs, v. Linda HOFFMAN, in her official capacity as Director of the Washington Department of Ecology, the Washington Department of Ecology, and the State of Washington, Defendants, and Yes On I-297: Protect Washington, et al., Intervenor Defendants.

116 P.3d 999

Certification from the United States District Court for the Eastern District of Washington in UNITED STATES of America, Plaintiff, and Flour Hanford, Inc., and Tri-City Industrial Development Council, Intervenor Plaintiffs, v. Linda HOFFMAN, in her official capacity as Director of the Washington Department of Ecology, the Washington Department of Ecology, and the State of Washington, Defendants, and Yes On I-297: Protect Washington, et al., Intervenor Defendants.

No. 76629-1.

Supreme Court of Washington, En Banc.

Argued May 19, 2005.

Decided July 28, 2005.

COPYRIGHT MATERIAL OMITTED

Cynthia J. Morris, Kenneth C. Amaditz, David Kaplan, U.S. Department of Justice, Environmental Defense Section, Washington, D.C., James R. Spaanstra, Jessica F. Toll, Lynn M. Kornfeld, Faegre & Benson, Denver, CO, Stephen Alan Smith, Matthew J. Segal, Preston Gates & Ellis, LLP, Michael James Zevenbergen, c/o Noaa/Damage Assessment, Seattle, Stephen B. Cherry, Richland, William Herbert Beatty, U.S. Attorney's Office, Spokane, for Plaintiff.

Joseph Earl Shorin, Elliott S. Furst, Laura J. Watson, Andrew Arthur Fitz, Attorney General's Office/Ecology Division, Olympia, Michael J. Robinson-Dorn, UW School of Law, Seattle, for Defendant.

Kristopher Ian Tefft, Association of Washington Business, Olympia, for Amicus Curiae Association of Washington Business, Members of Wash. State Legislature, Tri-City Area Chamber of Commerce.

OWENS, J.

¶ 1 This case involves five questions of law related to Washington Initiative Measure No. 297 (I-297),¹ now known as the Cleanup Priority Act (CPA), chapter 70.105E RCW. These questions were certified to this court by the United States District Court for the Eastern District of Washington.

FACTS

¶ 2 The CPA was passed as I-297 in the November 2004 election and became part of a complex state and federal system for regulating materials that are variously described as hazardous, dangerous, radioactive, or having some combination of these attributes. The CPA contains several distinct provisions but, as a general matter, was drafted to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete. See RCW 70.105E.010 (stating the purpose of the CPA). Before any section of the CPA could be implemented by the State of Washington Department of Ecology (Ecology), the United States sought and obtained a temporary restraining order in the United States District Court.²

¶ 3 As the federal case progressed, the United States sought an order of summary judgment that the CPA's provisions violate the United States Constitution's supremacy clause (article VI, clause 2) and commerce clause (article I, section 8, clause 3), and extend beyond any waiver of sovereign immunity. In opposing the summary judgment motion, Ecology argued that statutory interpretation of the CPA by this court would narrow or eliminate many of the United States' claims. To this end, Ecology moved to certify five questions (the first of which having four subparts) for an opinion. Judge Alan A. McDonald granted the motion, and we accepted review of the questions as certified.³

CERTIFIED QUESTIONS

1. What materials are encompassed within the definition of "mixed waste" set forth in Section 3(9) of the CPA [RCW 70.105E.030(9) ]?

(a) Specifically, does the definition of "mixed waste" encompass materials that consist solely of radioactive source, special nuclear, or byproduct materials and, if so, under what circumstances does the CPA apply to such materials?

(b) Specifically, does the definition of "mixed waste" encompass materials that are mixtures of radioactive source, special

nuclear, or byproduct materials and other hazardous substances that do no[t] designate as "dangerous waste" under state laws? If so, under what circumstances does the CPA apply to such materials?

(c) Specifically, does the definition of "mixed waste" encompass materials that are not "solid wastes" under the Resource Conservation and Recovery Act (RCRA) and, if so, under what circumstances does the CPA apply to such materials?

(d) In light of the Court's answers to subparts (a) through (c), above, does the definition of "mixed waste" expand the scope of materials regulated as mixed waste under the Washington Hazardous Waste Management Act (HWMA) and RCRA?

2. Does the operation of the CPA prevent the intra-site transfer of waste among various units at a site or facility?

3. How does the exemption in Section 8 of the CPA [RCW 70.105E.080] affect the application of the CPA to United States naval facilities?

4. Does section 6(1)(a)(ii) of the CPA [RCW 70.105E.060(1)(a)(ii)], which requires development of an inventory of hazardous substances potentially disposed to unlined trenches based on "actual characterization["] of such substances, require the physical inspection of each and every material disposed?

5. If the federal court finds that certain provisions of the CPA are unconstitutional, are the remaining provisions of the statute severable?

Certification to Washington State Supreme Court (Feb. 8, 2005) at 2-3.

STANDARD OF REVIEW

¶ 4 RAP 16.16 allows this court to determine questions of law certified by a federal court if the question is one of state law that has "not been clearly determined and does not involve a question determined by reference to the United States Constitution." RAP 16.16(a). Whether to actually answer a certified question that has been accepted for review is within the discretion of this court. See id.; Hoffman v. Regence Blue Shield, 140 Wash.2d 121, 128, 991 P.2d 77 (2000). We have declined to answer a certified question where the record before us was insufficient and any attempt to answer would be "improvident." Id.

¶ 5 Questions 1-4 require statutory interpretation of the CPA. Statutory interpretation is a question of law that is reviewed de novo. See W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash.2d 599, 607, 998 P.2d 884 (2000). "Where statutory language is plain and unambiguous, courts will not construe the statute but will glean the legislative intent from the words of the statute itself, regardless of contrary interpretation by an administrative agency." Agrilink Foods, Inc. v. Dep't of Revenue, 153 Wash.2d 392, 396, 103 P.3d 1226 (2005). "A statute is ambiguous if `susceptible to two or more reasonable interpretations,' but `a statute is not ambiguous merely because different interpretations are conceivable.'" Id. (quoting State v. Hahn, 83 Wash.App. 825, 831, 924 P.2d 392 (1996)).

ANALYSIS

1. What materials are encompassed within the definition of "mixed waste" set forth in RCW 70.105E.030(9)?

¶ 6 Clearly, we cannot provide a complete answer to this general statement of the question. Creating a comprehensive list of every material encompassed within the CPA definition of "mixed waste" would be impossible. Given the specificity of the subparts, it appears that this portion of the question is not intended to be answered as phrased; the parties themselves forgo any attempt to do so. Subparts (a)-(c) narrow the scope of the question to specific definitional disputes. Subpart (d) appears to simply require a summation of the conclusions in subparts (a)-(c). Accordingly, we confine our answers to determining whether the CPA definition of "mixed waste" expands the scope of regulated materials beyond the Hazardous Waste Management Act, chapter 70.105 RCW (HWMA) and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k (RCRA) a. Specifically, does the definition of "mixed waste" encompass materials that consist solely of radioactive source, special nuclear, or byproduct materials and, if so, under what circumstances does the CPA apply to such materials?

¶ 7 The parties uniformly agree that the answer to this question is, no. For a material to qualify as "mixed waste" under the CPA definition, it must have both a nonradioactive component and a radioactive component. See RCW 70.105E.030(9). Materials that consist solely of radioactive source, special nuclear, or byproduct materials are outside the scope of this definition.

b. Specifically, does the definition of "mixed waste" encompass materials that are mixtures of radioactive source, special nuclear, or byproduct materials and other hazardous substances that do not designate as "dangerous waste" under state laws? If so, under what circumstances does the CPA apply to such materials?

¶ 8 For a material to "designate" as dangerous waste, it must either be specifically listed as a dangerous waste under WAC 173-303-081 through -082, exhibit one of four characteristics (ignitability, corrosivity, reactivity, or toxicity) under WAC 173-303-090(5)-(8), or meet the criteria of toxicity or persistence under WAC 173-303-100(1). The United States argues that the plain language of the CPA's "mixed waste" definition includes, as a matter of law, materials that do not "designate" as dangerous waste. In response, Ecology invites us to ignore the defined terms incorporated within the CPA in favor of a far narrower interpretation of "mixed waste." For the reasons that follow, we decline Ecology's invitation.

¶ 9 The United States' position is relatively simple: there is an unbroken chain of cross-references from the CPA definition of "mixed waste" to the expansive definition of "hazardous substances" in RCW 70.105.010(14). In turn, RCW 70.105.010(14) incorporates materials that do not "designate" as dangerous waste under the HWMA. These definitional cross-references in the CPA relate to one another as follows:

"Mixed waste" or "mixed radioactive and hazardous waste" means any hazardous substance or dangerous or extremely hazardous waste that contains both a nonradioactive hazardous component and a radioactive component, including any such substances that have been released to the environment, or pose a threat of future release, in a manner that may expose...