Lopez Port has broad powers | Guest column

By Prem, Attorney

Special to the Islands’ Weekly

As a resident of Lopez and as an attorney, I was asked by County Council member Jamie Stephens to analyze whether our Lopez Port District is authorized to operate our Transfer Station.  Specifically, I was asked to comment (i) on the opinion of the Port District attorneys (who are located in Bellingham) and (ii) on the opinion of our County Attorney, Randy Gaylord.

1. Summary.

Both written opinions are ostensibly deficient (i) in failing to correctly identify the question at hand, (ii) in describing falsely or misleadingly the nature of operations at the Transfer Station, (iii) in failing to identify or to analyze the pertinent authorizing sections of the Revised Code of Washington (RCW 53.04.010 and 53.08.020), and (iv) in failing to acknowledge the broad scope of authority granted to governmental agencies, such as Port Districts, which are engaged in commercial activities.

In my opinion, in view of the deficiencies in the two attorney opinions, their resulting conclusions would not be upheld by either the Attorney General or by the courts of this state.

2. Question and Conclusion.

The question at hand, as properly formulated follows. — Does the Lopez Port District have statutory authority under RCW 53.04.010 and 53.08.020 to operate the Transfer Station in view of the character of the actual operations at that facility?

Our Transfer Station is not a “disposal site” as defined in RCW 70.95.030(6).  Additionally, at this facility, there occur no actual disposal operations such as “energy recovery,” “incineration,” “landfill[ing],” or material conversion as by “recycling.”  These four quoted terms are each given specific definitions in RCW 70.95.030.

The Port does have authority to operate the Transfer Station.  This is clearly stated in RCW 53.04.010 and 53.08.020.  Both of these statutory sections expressly authorize a Port District to operate “motor vehicle transfer and terminal facilities.”  RCW 53.08.020 also expressly authorizes a Port District to “perform all customary services including the handling, weighing, measuring and reconditioning of all commodities received.”  There are no known prohibitions in the RCW which would restrict the Port with respect to the nature of the materials passing through the Transfer Station.  Therefore, the Port’s express powers encompass its authority to receive at the facility, and to transfer away from the facility, those materials scheduled for offsite recycling as well as those materials scheduled for offsite landfilling.

3. Detailed Description and Characterization of the Transfer Station.

The Transfer Station receives incoming goods which are delivered by motor vehicle.  The incoming goods are separated into three streams: (i) the reusables go to the Take-It-or-Leave-It area, (ii) the recyclables are placed in tanks or bins, and (iii) the goods which are neither reusable nor recyclable are placed in drop boxes.  These last two streams of outgoing goods are subsequently transported by motor vehicle to off-island sites either for disposal by recycling or for disposal by landfilling.

No actual disposal of any goods occurs at the Transfer Station.  All goods delivered subsequently leave this facility unaltered in character.  In contrast, a disposal facility or “disposal site,” as defined by RCW 70.95.030(6), is a “location where any final treatment, utilization, processing, or deposit of solid waste occurs.”  Some specific final disposal procedures used at disposal sites are defined by that same RCW section.  The following disposal terms “energy recovery,” “incineration,” “landfill[ing],” and “recycling” are each respectively defined by separate sub-sections of RCW 70.95.030.

4. Attorney Misunderstandings of the Transfer Station.

The written opinions of the Port attorneys and of the County attorney (Randy Gaylord) apparently arrive at erroneous conclusions because of their respective misunderstandings of the operations at the Transfer Station.  In the written opinion of the Port attorneys, the Transfer Station is repeatedly described as a “Waste Facility”.  However, that opinion does not describe or define what is meant by that term.  This loose characterization suggests that it is a waste treatment facility, which it is not.  In the written opinion of the County attorney (Randy Gaylord), the Transfer Station is falsely described as a “waste disposal facility”.  No disposal of waste occurs at the Transfer Station, and it is not a “disposal site” as defined by RCW 70.95.030(6).  Therefore, Randy is ostensibly answering the wrong question.