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 REVIEW OF WASHINGTON
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ST~TUTORY AUTHORITIES FOR FINAL AUTHORIZATION REQUIREMENTS 

1.	 Hazardous Waste Management by the Department of Ecology 

(Hazardous Waste Disposal - Revised Code of Washington (RCW) 70.105) 

1.	 Defini.tion. pf Disposal RCW 70,.105.010l!l 

The definition of "disposa'· is limited to extremely hazardous 

waste; however, the term is used in various sections of'the 

statute in referring to dangerous wastes. The Environmental 

Protection Agency (EPA) recommends the State seek statutory re-definition of the term to include all dangerous wastes. If 

not. the State will need to demonstrate that the limited 

definition ,does not restrict authority to regulate disposal of 

dangerous wastes. 

Secondly, the State will need to assure that.the definition of 

disposal captures all of the practices and effects covered by 

the Resource Conservation and Recovery Act (RCRA) definition of 

disposal at Section 1004(3). 

2. Definition, of disp,osal ,si.te RCW 70.105.01.0(3) 

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 "Disposal site H is defined as -the site at which extremely
 

hazardous waste is disposed in accordance with the chapter."
 

It is not clear how this limited definition relates to the
 

general authority of RCW 70.105.130 to regulate disposal of 

dangerous wastes. For example. under RCW 70.105.070, disposal of dangerous wastes at the lithe site provided under this 

chapter" can only occur by satisfying certain conditions or by demonstrating that an "emergency and potential threat to the 

.public health and safety exists." The Attorney General should 

be prepared to discuss how these restrictions relate to the 

State's general authority under RCW 70.l05.130(b} to promulgate regulations for the treatment. storage and disposal of dangerous wastes. 

3. Def~~it~on of dangerous was~e RCW 70.105.050(5) 

The statutory definition of dangerous appears less comprehen­ sive than the RCRA definition of hazardous waste at Section 

1004(5). in some respects as discussed below. If the State's 

authority does not capture all the materials RCRA authorizes 

EPA to regulate. statutory amendments would be necessary. 

The State's definition includes only materials disposed of. where~s RCRA includes wastes which may pose a threat when 

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improperly treated. stored, transported. disposed, or otherwise 

managed. The extremely hazardous waste definition It RCW 

70.105.050(6) is similarly tied only to disposal. 

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In addition, under RCRA's definition at Section 1004(5), EPA is 

empowered to regulate materials which may cause certain 

effects, including significant contribution to an increase in af~

~~7.",.... mo.r..t.aJ1ty or 5.erio~s illness. It is not clear that the 'L 'u, t1 

,e ,.. State's definition captures the same effects. 5fV.. Ttl.· ~. b Jf . . '., ~~.(.. . 

It is unclear to what extent the definition of dangerous waste t . 

authorizes regulation of recycled wastes in a manner equivalent 

to EPA's, since dangerous waste is defined in terms of discarded, abandoned, useless or unwanted materials. 

While the RCRA statutory definition.of solid waste at Section 

1004(27), of which hazardous waste is a subset, uses the term 

Mdiscarded" without specific reference to recycling. other 

definitions identify recycling as part of solid waste management (see RCRA Section lO04(29) and (30». The Washington 

statute does not appear to provide similar eV1dence of an 

intent to include re-used or reclaimed materials within the 

danagerous waste jurisdiction. The Attorney General should 

also discuss whether the definition of disposal, in its 

reference to recycling of wastes once discarded. expands or 

limits the State's authority to regulate wastes that are used 

or recycled. 

Finally, the statute does not define dangerous wastes as solid 

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wastes. The State must assure it has authority to cover all 

types of waste found in RCRA's solid waste definition at 

Section 1004(27). .The Attorney General should discuss whether 

the absence of a statutory definition of solid waste limits the 

State's authority to adopt dangerous waste regulations wherein 

solid waste is defined and wherein dangerous wastes are 

identified as solid waste (WAC 173-303-070(1». The State 

should also discuss whether the presence of a statutory definition of solid waste in another statute (Solid Waste 

Management Act--RCW 70.95.030(9» limits the State's authority 

to use a broader definition of solid waste in the dangerous 

waste regulations (WAC 173-303-040(78». 

4. Identification and Listing 

States must have authority to identify hazardous wastes by list 

and Characteristics, equivalent to that provided by RCRA 

Section 3001{a). RCW 70.105.020(1) only specifically authorizes 

designation of EHW by characteristics. The Attorney General 

may be able to demonstrate that the broad grant of authority at 

70.105.130 includes authority to identify wastes (both dangerous wastes and extremely hazardous waste) by list and by 

characteristic. 

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s. Generator Requ~.rements

The statute does not appear to provide authority to regulate 

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:~ .... --... generators of dangerous waste. The Attorney General may be 

able to demonstrate that the broad grant of authority in RCW I'· 70.105.130 provides an adequate basis for regulations requiring 

generators to designate wastes and to adhere to standards 

equivalent to EPA's. If the existing statute does not provide ~ufficient legal basis for p~omulgat10n of generator requirements. statutory amendments would be necessa~i •. 

6. Manifest apd Transportation Requir~ments

Section 70.105.130 provides authority to establish a manifest 

system, but does not specify that such system shall be consistent with Department of Transportation (DOT) reQuirements as 

does RCRA at Section 3003(b). The State may be able to assert 

that the broad grant authority to establish a manifest system 

includes authority to establish a system consistent with DOT 

requirements. 

A separate State statute--RCW 46.48 Safety--addresses transport 

of "hazardous mater1als u and establishes State Patrol authority

to adopt artd enforce the regulatory provisions of DOT 49 CFR 

100-199 as they apply to motor carriers. The State will need 

to explain whether the State Patrol will implement.any portion of the dangerous waste program. Further, the Attorney General 

should discuss whether the DOE is bound by the lesser penalty 

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provision in RCW 46.48.175 in the event a dangerous waste 

program requirement also constitutes a state patrol reQuirement • 

7. Treatment, Storage, Disposal Standards 

The Attorney General should be prepared to discuss whether RCW 

70.105.050 provides an exemption which.allows for the processing (reclamation, treatment,"detoxification, or neutral- _ 'ization) of extremely hazardous wastes at sites o.ther than - ri1--{' L'-Z'(,~

those "established and approved for such purpose" under ~i,ct·

provisions of RCW 70.105. f "/.:7 ",' ," 

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, I.' 8•. Permitting Requirements :(;:t:":' ~~t ~.!li'~~f..J-:· I 

States must have authority to modify, revoke and re-issue and f(u~~: ,rl~7,

terminate permits for certain causes as specified in 40 CFR I 

122.15 and 122.16. The Attorney General should be prepared to 

explain whether the broad grant of authority 1n RCW 70.105.130 

to establish a permit system includes authority to modify, 

revoke, and issue. and terminate permits as specified in State 

regulations at WAC 173-303-830(3) and 173-303-825(4)(the State's analog to 40 CFR 122.15 and 122.16). 

Assuming RCW 70.105.130 does provide authority as dis~ussed

above, the State should discuss whether the proposed new 

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section RCW 70.105.095(2), if enacted, would restrict this 

authority by allowing 00£ to revoke a permit for noncompliance 

fnlY after a compliance order is issued and the permittee fails 

o comply with such order. 

There is no specific authority in the statute regarding public 

notice and hearing procedure~ in the permit process as speci­ fied by RCRA 7004(b)(for example, informal hearings upon

request, rad10 broadcast of notice, etc.). Although States may 

address these reQuirements in regulation, the State must assure 

that ~hese procedures are in accord with State statutes, 

including the Administrative Procedures Act. 

9. Enforcement . . . Authorities ., - Criminal

In RCW 70.105.090 of the statutory amendment. any violat10n of 

the chapter or implementing rules constitutes a gross m1Sdemeanor. The State will need to assure the implementing regulations identify the specific prohibited actions identified 

in 40 CFR 123.9(a)(3)(1»8) for which criminal sanctions must 

be available. 

States must be able to seek the maximum fine of $10,000 for 

each day of a continuing violation. The Attorney General 

should be prepared to discuss whether the ROW 70.105.090 

language regarding useparate and distinct violations· provides 

authority to seek fines for each day of a continuing violation. 

10. Authority for Hazardous Wastes which are also Radioactive. 

The Washington hazardous waste statute excludes radioactive 

wastes from its jurisdiction. RCRA's ~~atutory exclusion of 

radioactive wastes from the definition of solid waste at 

§1004(27) is limited to usource. special nucle~r or by-product 

material as defined by the Atomic Energy Act of 1954." With 

the exception of these materials, States must be able to 

regulate any hazardous waste regardless of whether the waste is 

also radioactive. The State will need to demonstrate authority 

to regulate hazardous waste which are also radioactive in a 

manner equivalent to RCRA, either by DOE or through other 

agencies and authorities. Secondly, States which impose bans 

on the importation of hazardous wastes will not be considered 

consistent with other State programs, one of the pre-requisites for final authorization. Initiative 383 (ReW 70.99). if found 

constitutional, would appear to be an importation ban if the 

initiative applies to hazardous wastes which are also 

radioactive. 

11. Inspection Authority 

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The State must have the authority to inspect those places where 

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records are kept (40 CFR l23.8{c». The'Attorney General 

should be prepared to discuss. as was done for interim authorization, whether the language at RCW 105.130 (20)(d) referring 

to -establishments regulated under this section- includes 

places ~here records are kept. - ( ? .r·7 . :. . l u<:~;

Ability to Share. Jnforma~1o~ wit~ EPA • 

The State must have the ability to share information w1~h EPA 

;. 17t1~/' . "" without restriction. including information claimed to be ../t.t flol(4[j,f( confidential (RCRA §3057(b) and 40 CFR 123.10). The Attorney p ~?"'. JA·~ General should discuss. as was done for interim authorization. 

~a·rC' . tl .,jJ?ft.. hO.W RCW 43. 21 A. 160 does not 11m1 t the States ab11 ; ty to share 

.J ." ,.1i allinformation with EPA and whether RCW 42.17.330 will
 

Lj!",,\ L~~ \' ~nif~~antl~ restrict EPA's access to information.
 

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L) 13. Public Participation in the Enforcement Process . 

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The Statute does not allow intervention as requi~)f 40 CFR 

123.9(d). The State may elect to use civil rulel2~~ ·coupled rwith the appropriate assurances from State enforcem1fJnt official 

in the MOA, to satisfy this requirement. 

II. .Haz~.rdous Wa.ste Regulation at Ener9Y Facilitie.s d(RC~ 80.50t 

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For purposes of final authorization. the State must have authority

to regulate, 1n an equivalent manner. all hazardous waste activities 

covered by the Federal program regardless of jurisdictional authorities, and regardless of whether these activities currently occur in 

the State. 

Assuming that Energy Facility Site Evaluation Council plans to use 

DOE's regulation. the State must include 1n its application discussion of how RCW.80.50 provides legal authority to adopt and 

enforce the full set of dangerous waste regulations. In addition. 

EFSEC must have authority for all general program requirements in 40 

CFR 123, Subparts A and B. General program elements include, for 

and "example: a compliance evaluation program. including adequate inspection authority (40 CFR Part 123.8); full enforcement 

authorities (40 CFR 123.9); and sharing of confidential information 

with EPA without restriction (40 CFR 123.10). 

EPA notes certain provisions within the energy facility statute 

where authorities appear insufficient for final authorization or 

where it appears it may be difficult for the State to conclude the 

existing statute provides requisite authorities or coverage for 

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final authorization. These specific comments are provided below. 

If the Attorney General cannot find adequate basis in the existing 

statute to to impose all general and specific program requirements 

at energy facilities. statutory amendments will be necessary to 

support an application for final authorization• 

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1. Scope of authorities 

The definition of energy facility at RCW BO.SO.020(10)(b) excludes facilities operated by the military or by any other 

agency for national defense purposes. If such facilities 

include hazardous waste activity, there is I need to assure 

such activity is subject to the State's dangerou~ waste program by some means. 

The statute at ROW 80.50.020(6) specifically exempts common 

carriers, railroads, and motor vehicles from EFSEC regulation. 

To the extent that such carriers were hazardous waste transporters. the State needs to assure that the activity is subject

to the State's dangerous waste program by some means. 

2. Financial Respons1blity 

RCW 80.50.071 relates to payment of fees by applicants for 

certification. The State should discuss whether this authority 

or the broad grant of authority to adopt regulations (RCW 80.50.040(1» extends to imposition of requirements for 

maintenance of funds for facility closure and post-closure care 

and for liability insurance. 

3. Permitting Proce~~r~s

•	 States must have authority to modify. revoke and re-issue. and 

terminate permits for certain causes as specified in 40 CFR 

122.15 and 122.16.· The State should be prepared to discuss 

whether the statute provides requisite authorities for permit 

modification revocation and re-issuance. and termination. 

The statute's general authority to conduct public hearings may provide sufficient authority to promulgate regulations equi­ valent with the RCRA requirements, including those of RCRA 

Section 7004(b) with respect to public participation in the 

permitting process. Two possible exceptions are: 

a).	 RCW 80.50.090(1) and (2) require a public hearing to 

be held within 60 days of receipt of an application. 

If approval decisions are made at that time regarding the location of an energy facility (with associated 

hazardous waste treat, store, dispose activity) which 

are the subject of 40 CFR 264 standards (such as 

floodplain or seismic standards), RCRA reQuires development of a draft permit proposing conditions 

relative to those standards. There must be a 45-day 

comment period on the draft permit. The State's 

60-day requirement appears insufficient to develop a 

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draft permit for location standards, conditions, and 

to provide the requisite 45-day comment period • 

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b). The State will also need to deierm1ne whether 

contested case hearings, requirements, and procedures 

are consistent with the RCRA permitting procedures, 

Section RCRA 7004(b) •. 

4. Enforcement Remedies 

The Attorney General must assure that the State satisfies the 

requirements of 40 CFR 123.9 with respect to enforcemen~

authorities. The existing statute does not appear to meet . these requirements as follows: . 

a). Authority to assess or to sue to recover civil 

penalties in at least the amount of $10,000 per day 

-of violation (40 CFR 123.9(a)(3)(i)(A». For 

continuing violations, the State must be able to seek 

at least $10,000 for each day of violation. 

b). Criminal penalties (gross misdemeanors) appear insufficient in light of 40 CFR 123.9(a)(3)(1)(8)

wherein the State must be able to seek criminal fines 

of at least $10,000 for certain program violations. 

For continuing violations, the State must be able to 

seek at least $10,000 for each day of violation •. 

5. Entry Authority 

RCW 80.50 is silent with respect to entry authority. The State 

must assure equivalentauthor1ty to enter, for inspection 

purposes. any site or premises subject to the regulations or 

any site at which records relevant to program operation are 

kept, even if records are kept at a site other than the 

certified energy facility site•. 

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