LRI is in Violation of Washington State Water Rights laws - 90.44 RCW.

LRI is pumping a daily average of over 5,000 gallons per day from their leak detection collection system (LDCS) located under the bottom of the landfill. This landfill is currently in violation of the law (90.44 RCW, Regulation of Public Groundwater, and 173-500 WAC) and will, if allowed to proceed toward full build-out, potentially withdraw 8 times its current total for cell 1.

The LDCS is failing to operate as proposed by LRI in its permitting process.

When we compare the volumes LRI predicted to be pumped from this aquifer (in their permit application) with the actual volumes being pumped, we can see the LDCS is failing to operate as proposed and/or was misrepresented in the permitting process.

Predicted daily average water volumes during wet season (all 8 cells) 3,175 gallons per day

Actual daily average during wet season (1 cell only) 7,011 gallons per day Dec. 1999 through May 2000

Predicted daily average water volumes during dry season (all 8 cells) 95.5 gallons per day

Actual daily average during dry season (1 cell only) 3,393 gallons per day June 2000 through Sept. 2000

Water Withdrawn Must Have a "Beneficial Use"

In a memo dated February 15, 2001 from Mike Harris, Dept. of Ecology (DOE), Southwest Regional Office (SWRO), Water Resources to Laurie Davies, DOE, SWRO, Solid Waste, justification is given for not requiring LRI to obtain a water rights permit. This justification is in violation of the law, contrary to Ecology's own interpretation of the law, and factually incorrect.

Mr. Harris, says the water LRI is withdrawing is "not for beneficial use" claiming this exempts LRI from a water right permit. This is a distortion of the meaning and intent of RCW 90.44.

The law defines "beneficial use" in WAC 173-500-050

"BENEFICIAL USES" are uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state."

That definition, however, does not mean that one is exempt from a water rights permit if the water has no beneficial use. To the contrary, a prohibition on the wasting of water is found in the RCWs . RCW 90.44.110 "Waste of water prohibited - exceptions." Does not allow a water rights permit to be granted if the water has no beneficial use.

"No public ground waters that have been withdrawn shall be wasted without economical beneficial use."

The exceptions listed in this section are for reasonable quantities in connection with the construction, development, testing, or repair of a well.

90.44.020 RCW REGULATION OF PUBLIC GROUND WATERS, Purpose of chapter, requires beneficial use of ground water.

"This chapter regulating and controlling ground waters of the state of Washington shall be supplemental to chapter 90.03 RCW, which regulates the surface waters of the state, and is enacted for the purpose of extending the application of such surface water statutes to the appropriation and beneficial use of ground waters within the state."

Ecology's own publication "Questions & Answers -- Water Rights in Washington" (publication # 96-1804-S&WR) quoted in part below gives further guidance on the prohibition of wasting water:

"Q. What criteria does Ecology use when making water right decisions?

"A. Water right permits are issued by Ecology only if the proposed use meets the following requirements:

· Water will be put to beneficial use;

· No impairment to existing, or senior rights;

· Water is available for appropriation; and · Issuance of the requested water right will not be detrimental to the public's welfare."

Ecology's publication "Focus, Complying with State Water Use Laws" (Ecology publication No. 00-11-004), third page asks and answers an important question:

"What is illegal water use?

"There are several types of illegal water use, including:

· Diverting or withdrawing water without an existing permit, certificate, or water right claim. (1st bullet)

· Wasting water or not using water beneficially. (8th bullet)

In a presentation given by Jill Van Hulle, Washington State Department of Ecology, SWRO, Water Rights division on June 14, 2000, Ecology's interpretation of "beneficial use" was also made clear. Here are some quotes from her presentation:

"Water rights are required by law to ensure proper allocation and management of Washington's water resources. Our state's waters are a public resource and their use should return the maximum benefit to the public."

"A water right is a legal authorization to use a public resource for:

· a certain amount of public water · for specific beneficial purposes."

"A Water Right Certificate is awarded when the water right holder beneficially uses the amount of water permitted at the location identified and for the intended purpose."

"Are there any Exemptions to needing a water right?"

Yes, but only one…

The 5,000 gallon a day groundwater exemption is for:

· Stockwater

· Watering a lawn or noncommercial garden that is one half acre or less in size

· Single or group domestic purposes, not to exceed 5,000 gallons a day."

Does LRI's water withdrawal from its "horizontal seepage wells" have a beneficial use?

LRI's water withdrawal is for "beneficial use" as defined in WAC 173-500-050 and further defined in Ecology's publication "Water Right Application Information":

1. CI-"Commercial and Industrial Manufacturing."

Without the pumping of these quantities of water this landfill, a commercial venture, could not operate. Pumping ground water from the Leak Detection Collection System (LDCS), a horizontal seepage well, is an essential part of the engineered design of the landfill.

2. EN - "Environmental Quality (includes pollution control, dust control, flood control, or any water use which improves or maintains the quality of the environment)"

The purpose of pumping from the LDCS is to test for contaminants. Its primary purpose is to protect the sole source aquifer below the landfill from pollution and maintain the quality of that aquifer.

Consumptive Use

Mr. Harris then goes on to claim that this water use is a "Nonconsumptive use"

WAC-173-500-050 (9) "NONCONSUMPTIVE USE" is a type of water use where either there is no diversion from a source body, or where there is no diminishment of the source."

The water being pumped from the LDCS is being diverted from the aquifer to a storm water pond and will, when contamination is detected, be trucked off site for treatment and disposed of in a sewer system. This is a consumptive use and, furthermore, diminishes the water source by the number of gallons diverted.

Department of Ecology is Mandated to Require Water Right Permits

RCW 90.44.050 Permit to withdraw. After June 6, 1945, no withdrawal of public ground waters of the state shall begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided…."

RCW 90.44.035 Definitions. For purposes of this chapter:

(1) "Department" means the department of ecology;

(2) "Director" means the director of ecology;

(3) "Ground waters" means all waters that exist beneath the land surface or beneath the bed of any stream, lake or reservoir, or other body of surface water within the boundaries of this state, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves."

It is very clear that the Department of Ecology is mandated to protect our ground water resources and require a permit for the withdrawal of groundwater in excess of 5,000 gallons per day.

The Tacoma-Pierce County Health Department's Role in Oversight of this Landfill:

The Tacoma-Pierce County Health Department has a duty to see the laws of the state are enforced. That duty is stated in LRI's solid waste permit:

"Section II. Authorization

The permittee, Land Recovery, Inc. (LRI) is hereby authorized to conduct activities associated with landfilling of municipal solid waste. Unless specifically stated otherwise, all activities shall be performed by LRI, their agents, employees or contractors. Activities must be in conformance with the attached general and specific conditions based on information supplied in the full permit application (Clarifying Report). All activities must be in compliance with Chapter 173-351 WAC, Criteria for Municipal Solid Waste Landfills (WAC 173-351) and RCW 70.95.163, (including demonstrations) and all relevant federal, state and local regulations (including state air quality, water quality and noise regulations)."

And,

6. Suspensions and Revocations

The Tacoma-Pierce County Health Department may revoke this permit if the facility is being operated in violation of Chapter 70.95 RCW, Chapter 173-351 WAC or local ordinances governing solid waste disposal facilities or if the Tacoma-Pierce County Health Department finds either:

a. That the permit was obtained by misrepresentation or failure to disclose any relevant information that could potentially have affected the issuance of this full permit or will affect the current operation of the facility;

c. That the site is being operated in violation of Chapter 70.95 RCW, WAC 173.351 or local statutes, ordinances, or regulations.

Pierce County's Responsibility.

In the Conditional Use Permit for LRI's 304th Street Landfill issued by Pierce County on January 2, 1996, the County's requires this project to be in compliance with all conditions imposed by the Tacoma-Pierce County Health Department.

"AK. The applicant shall comply with Chapter 173-351 WAC, Criteria for Municipal Solid Waste Landfills (CMSWL), and all conditions imposed by the Tacoma-Pierce County Health Department should a conditional solid waste permit be issued."

If LRI's 304th Street Landfill is not meeting the conditions imposed by the Tacoma-Pierce County Health Department, then it is in violation of its conditional use permit conditions.

The Law Must Be Enforced.

LRI's landfill at 304th and Meridian is operating in violation of the Washington State water rights laws, RCW 90.44, and its permits should be suspended or revoked until it is in compliance with the law.

Contact the following agencies who are supposed to be protecting our health and ask them why they are allowing LRI to be above the law:

DOE

PCHD