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# . REVIEW OF WASHINGTON

i ',,;**ST~TUTORY** 

### AUTHORITIES FOR FINAL AUTHORIZATION REQUIREMENTS

1. Hazardous Waste Management by the Department of Ecology (Hazardous Waste Disposal

- Revised Code ofWashington (RCW) 70.105)

1. Defini.tion.pfDisposalRCW 70,.105.010l!l

The definitionof "disposa'· is limited to extremelyhazardous 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) 

# '. "Disposal siteH 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 statutorydefinition 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 onlymaterials disposed of.**where~s** RCRA includes wastes which may pose a threat when 

# • improperly treated. stored, transported. disposed, or otherwise managed. The extremely hazardous waste definition ItRCW 70.105.050(6) is similarlytied only to disposal.

-1­In addition, under RCRA's definition at Section 1004(5), EPA is empowered to regulatematerials which may cause certain effects, including significantcontribution to an increase in**af~ ~~7.",....**  mo.r..t.aJ1ty or**5.erio~s** illness. It is not clear thatthe 'L

# 'u, t1 ,e ,.. State's definition captures the same effects. 5fV..Ttl.·**~.** 

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. . '.,**~~.(..** . It is unclear to what extent the definition of dangerous waste 

## t . authorizes regulation of recycled wastes in amanner equivalent to EPA's, since dangerous waste is defined in terms of discarded, abandoned, useless or unwanted materials.

While the RCRA statutorydefinition.of solid waste at Section 1004(27), of which hazardous waste is a subset, uses the term Mdiscarded" without specific reference torecycling. 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 authorityto regulate wastes that are used
or recycled. Finally, the statute does not define dangerous wastes as solid 

# • 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 identifyhazardous 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 identifywastes (both dangerous wastes and extremely hazardous waste) by list and by characteristic. 

# • s. Generator**Requ~.rements** The statute does not appear to provide authority to regulate**~2**

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--... generators ofdangerous waste. The Attorney General may be able to demonstrate that the broad grant of authority in RCW 70.105.130 provides an adequate basis for regulations requiring 

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generators to designate wastes and to adhere to standards equivalent to EPA's. If the existingstatute does not provide**~ufficient** legal basis for**p~omulgat10n** of generator requirements. statutoryamendments would be**necessa~i** •.
6. Manifest apd Transportation**Requir~ments** Section 70.105.130 provides authorityto establish amanifest system, but does not specifythat such system shall be consistent with Department of Transportation (DOT) reQuirements as does RCRA at Section 3003(b). The Statemay be able to assert that the broad grant authority to establish amanifest system includes authority to establish a system consistentwith DOT requirements.

Aseparate State statute--RCW 46.48 Safety--addresses transport of "hazardous mater1alsu and establishes State Patrol authority to adopt artd enforce the regulatory provisions of DOT 49 CFR 100-199 as they apply tomotor 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 

# • 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

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### ri1--{'**L'-Z'(,~** those "established and approved for such purpose" under**~i,ct·** provisions of RCW 70.105. 

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, I.' 8•.Permitting Requirements :(;:t:":'**~~t ~.!li'~~f..J-:·**  I
States must have authority tomodify, 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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-3­section RCW 70.105.095(2), if enacted, would restrict this authority by allowing 00£ torevoke a permit for noncompliance fnlY after a compliance order is issued and the permittee fails

ocomply with such order.

There isno 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 broadcastof notice, etc.). Although States may address these reQuirements inregulation, the Statemust 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 identifythe 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 itsjurisdiction. RCRA's**~~atutory** exclusion of radioactive wastes from the definition of solidwaste 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 

# • The Statemust have the authorityto 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. - ( ? 

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. :. . l**u<:~;** Ability to Share.**Jnforma~1o~ wit~**  EPA •
The State must have the abilityto share information**w1~h** EPA 

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### ."" 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.

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# tl.,jJ?ft.. hO.W RCW 43.21A.160 does not 11m1t the States ab11;tyto share 

### .J ." ,.1i allinformation with EPA and whether RCW 42.17.330 will Lj!",,\

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### ~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 satisfythis requirement.

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

# • For purposes of final authorization. the Statemust have authority to regulate, 1n an equivalent manner. all hazardous waste activities covered by the Federal program regardless ofjurisdictional 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 authorityto adopt and enforce the full set of dangerous waste regulations. In addition. EFSEC must have authorityfor all general programrequirements in 40 CFR 123, Subparts Aand 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 itmay be difficult for the State to conclude the existing statute provides requisite authorities or coverage for 

# • 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. statutoryamendments will be necessaryto 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 themilitaryor 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) specificallyexempts 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 ofrequirements for maintenance of funds for facility closure and post-closure care and for liability insurance.

3. Permitting**Proce~~r~s** 

# • States must have authorityto 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 a45-day comment period on the draftpermit. The State's 60-day requirement appears insufficient to develop a 

# • draft permit for location standards, conditions, and to provide the requisite 45-day comment period•

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# • b). The Statewill also need to deierm1ne whether contested case hearings, requirements, and procedures

are consistentwith 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 tomeet

.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 Statemust 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 Statemust 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 equivalentauthor1tyto 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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