October 1995

Responsiveness Summary

Comments and Responses

This section of the Responsiveness Summary contains summaries of all of the public

comments that Ecology received on the proposal and Ecology's responses. The

comments and responses are organized by section numbers as they appear in the

Dangerous Waste Regulations. Comments that are not specific to a particular section

of the regulations are located after the numbered sections.

WAC 173-303':'030

Abbreviations

Comment 1: TSD abbreviation. The word "transfer" should be deleted from the

description of the abbreviation TSD since the acronym "TSD facility" does not include

transfer; It stands for treatment, storage, and/or disposal facility..

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Response: Ecology agrees that it is incorrect for the word "transfer" to appear under

the abbreviation for TSD and is deleting it.

WAC 173-303-040

Definitions

Acutely Toxic or Chronically ToxicSubstance

Comment 2: One cornmenter requested that Ecology stop using the terms acutely toxic

substance and chronically toxic substance in the preamble discussion or rule unless they

are defined in WAC173-303-040.

Response: Ecology is considering issuing guidance for the rule sections where these

terms appear. Ifso, these terms will be defined there. These termshave been used in

Section 640(5)(e) since 1980 and relate to the definition of Extremely Hazardous Waste

(EHW). Under this rule amendment, an acutely toxic substance is a category B, A, or

X toxic substance (see WAC 173-303-100 for the definition of B, A, and X). Chronic

toxicity is indicated by the characteristic of carcinogenicity. The use of the term

acutely toxic substance in the preamble referred to a substance that meets the definition

. of category B, A,' or X.

October 1995

Acute Hazardous Waste

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Comment 3: Several cornmenters supported the modification of this definition as it

aligns the state definition with the federal definition. They noted that the terms acute

and acutely appear to be used interchangeably in the text of Chapter 173-303 WAC.

They alsofeltit is inappropriate to define the acronym AHW when it is not used

elsewhere in Chapter 173-303 WAC. One commenter suggested replacing acute and

acutely with AHW. . .... .

Response: The terms acute and acutely are used interchangeably in the text of Chapter

173-303 WAC just as they are in the federal regulations. Ecology defined the acronym

AHW to assist the regulated community because it is occasionally used in guidance

documents and by Ecology personnel.

Carcinogenic

Comment 4: Ecology should delete the definition of carcinogens since the lists are

repealed in 173-303-100.

Response: Ecology is maintaining the definition of carcinogens for reference.

Dangerous Waste

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Comment 5: One commenter suggested that the acronym "DW" should not be used to 0

mean something different than Dangerous Waste.

Response: The term dangerous waste refers to the entire universe of waste regulated

by Chapter 173-303 WAC. The dangerous waste universe consists of "DW" and

IIEHWII • The abbreviation "DW" is used to represent that portion of the dangerous

waste universe that is not Extremely Hazardous Waste. Ecology acknowledges that this

may cause confusion to people who are unfamiliar with the rules. Unfortunately, the

use of "DW" is ingrained throughout the regulatory system and a change would be very

significant. Therefore, Ecology will not change these terms at this time.

Extremely Hazardous Waste

Comment 6: Several commenters supported the amendments to this definition. One

commenter suggested modifying the definition by only referencing WAC 173-303-100

and including references to the criteria that will make a waste EHW.

Response: The section reference change has been made. The criteria were not

included in an attempt to limit the length of the rule.

October 1995

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Comment 7: One commenter questioned whether EHW needs to be identified as

anything that is in addition to the federal requirements. The commenter noted that it

appears from the RCW definition that Ecology could very easily take a position that the

federal program has met the need for defining EHW and no further, regulations on

EHW in Chapter 173-303 WAC would be necessary.

Response: Ecology has determined that certain wastes, in addition to those identified

as acutelyhazardous wastes (AHW), require regulation in Washington as EHW because

they represent risks similar to AHW.

Existing and New Tank System

Comment 8: Existing and New Tank System. The date that defines the line between a

new and existing tank system was changed from February 3, 1989 to July 14, 1986.

The effect of the change would be to make tanks installed between the two dates

retroactively non-compliant. The majority of the EPA tank regulations promulgated on

July 14, 1986 were non-HSWA requirements which did not take effect in authorized

states until the state rules were revised,to adopt such measures.

Response: The proposed change will be withdrawn. The commenter is correct that

non-HSWA requirements do not take effect in Washington State 'until Ecology adopts

, them; thus, the correct date for non-HSWA tank requirements is February 3, 1989 (the

date those requirements were adopted) and the correct date for HSWA requirements is

July 14, 1986. The effective date for the HSWA provisions remains July 14, 1986

regardless of when Washington adopted them. HSWA regulatory changes become

immediately effective and enforceable by the EPA when they are finalized and

promulgated.

Mixed Waste

Comment 9: Mixed Waste. The citation" 10 CFR 20.3" should be changed. The

current reference is 10 CFR 20.1003.

Response: The citation "10 CFR 20.3" will be changed to 10 CFR 20.1003.

Polycyclic Aromatic Hydrocarbons (PAlI)

Comment 10: Support the change to the PAH definition.

Response: .Support noted.

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October 1995
Comment 11: Language is not strong enough that the listed PARs are the only ones

Ecology regulates as persistent PARs.

. Response: The final rule language clarifies that the listed PARs are the only ones

considered for waste designation.

Qualified Groundwater Scientist

Comment 12: Qualified Groundwater Scientist. Omit the words" ...received a

baccalaureate or post-graduate degree in the natural sciences or engineering, and

has... " because a person with many years of directly applicable experience and

professional training should be fully qualified.

Response: The definition for "qualified groundwater scientist" is a federal definition

that thestate is adopting for equivalence with the federal hazardous waste program..

WhenEcology adopts federal rules, the State requirements must be at least as stringent

as the federal requirements..By removing the requirement for a degree, the State could

be seen as less stringent. While the content itself cannot be changed, the definition is

being divided into two sentences to make it easier to understand.

Special Waste

Comment 13: Support broader definition of special waste.

Response: Support noted.

Comment 14: The term "special" is overused throughout the regulation and is

therefore confusing. Ecology should select a different name.

Response: Changing the name of special waste at this point would probably cause

more confusion than leaving it as it is.

Sump

Comment 15: Sump. Separate the current definition of "sump" into two separate

definitions, "sump" and "lined sump", since the proposed definition actually has two

separate definitions for the same term and change all references to "sump" in the

. landfill, surface impoundment, and waste pile rules to "lined sump". Then replace the

term in the waste pile, landfill, and surface impoundment sections.

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Response: Ecology appreciates the commenter's interest in making the rules easier to

read. The proposed addition to the sump definition specifies what sump means in

relation to the landfill, surface impoundment, and waste pile rules. The definition is

. identical to the federal hazardous waste definition which has read this way since 1993.

It would probably be more confusing for people who are familiar with existing

terminology to change the definition at this point.

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Vessel

Comment 16: Vessel. Change the definition to differentiate between a "vessel"and a

"public vessel" to be consistent with the Oil Pollution Act of 1990, the Clean Water

Act, Solid Waste Disposal Act, Public Vessels Act and RCW Chapter 88.44. Ecology

may also wish to reference 42 U.S.C. 6939(d) for the application of federal hazardous

waste requirements to waste generated on public vessels.

Response: Ecology appreciates the commenters interest in making this definition more

precise. However, the proposed definition is identical to the federal Resource

Conservation and Recovery Act definition. Since the more encompassing term "vessel"

is used in the rules, that is the term the regulated person will be looking for rather than

"public vessel" .

WAC 173-303-060(2)

Notificatlon and Identification Numbers

Comment 17: Capitalize the word "ecology" here and in all other locations where it

represents the name of the Department of Ecology.

Response: The word "ecology" will be replaced with "the department" for consistency

with other areas of the regulations.

WAC 173;.303-070

Designation of Dangerous Waste

Comment 18: Ecology should simplify WAC 173-303-070 and develop guidance

documents to assist generators designating and handling their waste streams in place of

these regulations.

October 1995

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Response: Ecology is amending some of the language in WAC 173-303-070 to make

it more understandable. In addition, Ecology will be producing some new guidance

and updating some existing guidance that is intended to assist generators in designation

and management of their dangerous waste streams.

Comment 19: Ecology should clarify that although some wastes may become EHW

instead of DW as a result of this rule amendment, a person does not have to redesignate

containers in storage until they are moved out of the storage area.

Response: For storage areas that received manifested waste: Generally, containerized

waste in a storage area that was generated and designated prior to the effective date of

the regulation would not have to be relabeled while it is in storage. However, if the

waste is managed on-site in a manner that causes the waste to be "generated" (for

example, if the waste is treated) the waste would have to be redesignated and relabeled

at that point. The waste must also be redesignated prior to being moved off-site

because it is being "generated" at this point.

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For 901180 day accumulation areas: Under the regulations, generators that have

containerized waste in a 90/180 day accumulation area that was generated and

designated prior to the effective date of the regulation would not have to redesignate

their waste before it is shipped off-site unless it undergoes treatment on-site. Since the

waste is leaving the original generator it does not have to be redesignated prior to

shipment (provided the correct placarding is given to the transporter). However, in C

practice, most off-site TSDs will require the waste to be redesignated by the generator j

before they will accept it.

WAC 173-303-070(1)

Comment 20: Delete paragraph (c) "the requirements for small quantity generator

exemption are found in subsection (8)" because the attempt to add paragraph (c)

indicates that the small quantity generator requirements are too hard to find.

Response: Paragraph (c) was added at the request of Environmental Protection Agency

(EPA) staff who periodically review the Dangerous Waste Regulations. The paragraph

was added for clarity and to assist the regulated community by directing them to the

appropriate subsection.

WAC 173-303-070(2)

Comment 21: Ecology should adopt the portions of the federal regulations that have to

do with mixtures of hazardous waste and solid waste and when they cease to be

hazardous waste.

October 1995

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Response: Ecology will continue to wait for the federal government to resolve the

"derived-from" and "mixtures" rule issues. Ecology anticipates that the resolution of

.these rules and, possibly, the new "definition of solid waste" will occur within the next

year. Ecology also believes that it will cause less confusion if this portion of the

dangerous waste rules is amended once rather than twice, back to back.

Comment 22: Delete reference to 40 CFR 268 at 070(2)(c). Ecology has included the

definition of debris in section 040 and Ecology needs to be consistent with where the

regulated community is directed to find 'definitions.

Response: The references to 40 CFR Part 268 in 070(2)(c), (c)(i), and (c)(ii) will be

deleted since "debris" is defined in section 040 of the Dangerous Waste Regulations.

WAC 173-303-070(3)

Comment 23: Several commenters support the language changes to WAC 173-303-

070(3) which clarify that designation under the federal lists and characteristics is done

before designation under the state characteristics and criteria.

Response: Support noted.

• ' Comment 24: Ecology should clarify the language of WAC 173-303-070(3)(b) that

further designation may be required for compliance with Land Disposal Restrictions

(LDR) also.

Response: Comment noted. The language of WAC 173-303-070(3)(b) indicates that

further designation may be required for compliance with the LDR.

Comment 25: Amend the language or WAC 173-303-070(3)(c)(i) and (ii) to clarify

that testing alone will not tell if you have a dangerous waste, some knowledge of the

waste is necessary to determine if the waste meets the definitions.

Response: The language will be retained because it clarifies that there are options to

use, either knowledge alone or testing alone, to properly designate wastes. Ecology

agrees that when a person tests their waste, knowledge about the waste (including

knowledge about the process that generates the waste), is often used to designate the

waste. However, if there is no information about the process that generated the waste,

then testing alone can determine the proper designation.

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For example, if there is a drum of waste about which a generator has no information,

then testing will be necessary. Since it cannot be determined that the waste fits the

October 1995

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definitions of any of the wastes on the lists, (discarded chemical product, specific C.

sources, or non-specific sources) because nothing is known about the process that

generated the waste, then the waste is not one of those "listed" dangerous wastes. The

first tests that should be done are the federal and state characteristics (WAC 173-303-

090). If the waste fails one of those tests, then the waste is a dangerous waste and does

not need to be designated further unless 'one of the scenarios described in WAC 173-

303-070(5) applies. If the wastedoes not fail the tests for the characteristics, then the

waste must be tested under the state criteria. The first criteria is toxicity. One of the

tests for toxicity specified in WAC 173-303-100 should be done before the persistent

criteria tests. Suppose that the generator chooses to do the fish test at the DW

concentration (100 ppm).. If the waste fails this test it would be a toxic DW (WT02)

and further testing would not be required unless one of the scenarios described in WAC

173-303-070(5) applies. If the waste does not fail this toxicity test, then the tests for

the criteria of persistence must be done. Again, the test for the first persistent criteria,

halogenated hydrocarbon, should be done first because if the waste fails, no further

testing would need to be done unless one of the scenarios under WAC 173-303-070(5)

applies. If the waste does not fail either of these tests then it is not 'a dangerous waste.

, Knowledge alone can be used, even if nothing is known about the process that

generated the waste. For example, if it is known that a waste consists of 95 %

methylene chloride and 5% water, but there is no information about the process that

generated the waste, then it is not a discarded chemical product (U080) or one ofthe

spent solvent sources (FOOl or F002). Since the hazardous constituents and their r>. V' concentrations in this waste are known, then that knowledge can be used to determine if

this waste is a federal or state characteristic waste (it is not either of these). The next

designation step is the state criteria and the first criteria is toxicity. The toxicity of

methylene chloride can be looked up in a reference book. It is a Category D toxic

compound. Using this knowledge and knowing the concentration of methylene

chloride, it can be determined that the waste will "book" designate as a toxic DW

(WT02).

WAC 173-303-070(4)

Comment 26: Ecology should delete the reference to historical information about a

waste being EHW as a reason to require testing because the fundamental criteria for

EHW is being changed so that historical information may not reflect on the waste

today.

Response: The reference will be retained because information generated today on

wastewill be "historical" in a few years. Persons looking at historical information will

have to factor in the differences in the definition of EHW. However, the changes in

October 1995

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the EHW definition are not so significant as to discount all value of historical

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Comment 27: Ecology should adopt a position that states that the federal LDRs can

always be used to meet any state-only LDRs identified in Section 140(4)(a) and (b).

Response: It is Ecology's position that the federal LDRs can always be used to meet

any state-only LDRs identified in Section 104(4)(b), provided the intent of the stateonly LDRs are met. It is Ecology's position that most federal waste treated under the

federal LDRs will likely no longer fail the criteria for a state-only waste. Therefore, a

waste should comply with the federal LDRs first. However, for example, if a waste

still meets the definition of an EHW after compliance with the federal LDRs then it

will properly be subject to the EHW land disposal prohibition identified in WAC 173-

303-140(4)(a).

WAC173-303-070(5) Additional Waste Designation

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General Discussion

Under the previous rule, generators were required by "special knowledge", WAC 173-

303-070(5), to continue to designate beyond the federal classifications if they knew that

the waste would designate under the state criteria classifications. This rule was

intended to allow generators to stop designating a waste once they determined the waste

was a dangerous waste, but still required that the waste be managed in the most

stringent fashion by requiring generators to assign state criteria waste codes to the

waste if they had knowledge that the dangerous waste would designate under the state

criteria. With this rule amendment Ecology replaced the previous "special knowledge"

language of WAC 173-303-070(5) with more definitive language. It is Ecology's intent

that additional designation beyond the federal lists and characteristics is only required

when the additional waste codes that may apply to the waste will result in a more

stringent management standard that provides additional environmental protection.

Ecology believes that the circumstances described in this subsection cover those

instances when a generator would need to do additional designation of waste already

determined to be DW..

Comment 28: Several commenters supported the proposed amendments to Section

WAC 173-303-070(5). They felt that the language was much clearer than the original

language. One felt that it will benefit generators to be able to stop designating the

waste once it is determined to be a dangerous waste.

Response: Support noted.

October 1995

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Comment 29: Since Ecology is proposing to manage used oil under Chapter 173-354

WAC (Used.Oil Management Standards), the new references to used oil under Chapter C/

173-303 are confusing. In Section 173-303-070(5)(c), a statement has been added that

state-only DW managed as used oil would have to be designated under WAC 173-303-

100. It is not clear whether this section would require that state-only DW wastes can

be managed as used oil, or that used oil that is a state-only DW waste must be managed

under Chapter l73-303-WAC.

Response: The proposed Chapter 173-354 WAC does not address all types of used oil.

For example, non-petroleum based oils that are used in applications that do not involve

a vehicle or internal combustion engines are not included in the definition of used oil in

Chapter 173-354 WAC. This would include certain cutting oils and lubricating oils.

In addition, used oil defined by Chapter 173-354 WAC that has been mixed with a

dangerous waste is referred to Chapter 173-303 WAC for regulation. WAC 173-303-

515 contains provisions to allow used oil to be recycled by burning for energy recovery

provided the used oil is not an EHW. The language of Section (5)(c) will be amended

so the intent is clear. Used oil that has been determined to be a state-only DW must be

further designated under Chapter 173-303-100 if it is intended to be managed by

burning for energy recovery. Language describing the interface between Chapter 173-

303 WAC and Chapter 173-354 WAC will be added in both chapters if necessary,

when Chapter 173-354 WAC is adopted.

Comment 30: Section 5(a) should be deleted because it will place an unnecessary C

economic burden on the regulated community, particularly SQGs. Subsection (c)(ii)

satisfies the intent of the proposal. This proposal goes beyond the federal RCRA

program, so it does not meet the stated regulatory reform goals and is directly contrary'

to recently enacted Senate Bill 1010.

Response: This proposed rule does not represent a change from how this waste is

currently designated and managed. Rather, it clarifies how the existing requirements

are applied. This subparagraph requires generators offederal waste with a QEL of 220

pounds to make sure that the waste is not a toxic EHW if that waste would otherwise

only be subject to the small quantity generator provisions. The proposed rule is

somewhat less burdensome than the current rule. The definition of toxic EHW has

been narrowed in scope such that it only includes wastes which are highly toxic; for

example, they exhibit the same toxicity as products that carry a "poison" label or

pesticides that carry the signal words "poison" or "danger". Few wastes other than

discarded chemical products are this toxic. Nearly all generators of these wastes

already have information in the form of product labels or Material Safety Data Sheets

(MSDS) that will allow them to use knowledge to correctly designate these wastes

without needing to test them. In the past, this information would have constituted

"special knowledge" and these wastes would have been designated toxic EHW with a

October 1995

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2.2 pound QEL. This rule does not represent a change in how this waste should be

managed.

Ecology believes that waste this toxic should be subject to handling precautions that are

similar to the ones to which products of similar toxicity are subject. The generator

requirements provide these precautions; for example, labeling of containers and

identification of the hazard of the waste.

This proposed rule meets the stated regulatory reform goal of simplification and is less

burdensome. These wastes are of comparable hazard to RCRA wastes that are also

regulated at 2.2 pounds. Ecology believes that this rule meets the regulatory reform

goals of ESHB 1010.

WAC 173-303-070(7) Quantity Exclusion Limits

Comment 31: An example of how to aggregate AHW separately should be included

here.

Response: The exception for AHW has been removed from the rule because it is not

applicable, so an example is unnecessary.

Comment 32: There is a typographical error in WAS 173-303-070(b).

-Response: Comment noted. The language has been amended.

Comment 33: The antifreeze counting exemption should be included here. It needs to

be described in the regulation.

Response: Ecology agrees that the antifreeze exemption should be described in the

regulations. Ecology is completing an "advisory" process that will result in proposing

the antifreeze exemption as regulation during the next rule making.

WAC 173-303-070(8) Small Quantity Generators

Comment 34: Ecology should create a new section in the-Dangerous Waste

Regulations that would act as a "road map" for generators to help them determine their

generator status and which requirements - SQG, MQG, or LQG apply.

\ Response: Comment noted. Ecology is working on an enclosure to serve as a "road

map" and intends to include it with copies of the final rule. If this document is

effective, the rule language may be amended in the next rule making to incorporate the

language developed.

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Comment 35: The department should provide clarification in this section that SQG

waste may be subject to regulation by local jurisdictions or the Department of

Transportation.

Response: This advisory will be included in the SQG "BMP" guidance document that

will be developed to follow the final rule.

Comment 36: Section 070(8)(a)(i) should state "the quantity of waste generated per

month".

Response: Comment noted. The language has been amended.

Comment 37: An example relating to the text of Subsection 070(8)(a)(iii) should be

included.

Response: An example will be included in the guidance referenced in the response to

Comment #35.

Comment 38: Does the proposed increase in the accumulation limit to 2,200 pounds

change how much waste can be disposed of at one time by an SQG?

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Response: Yes, it will increase to 2,200 pounds. However, the generation rate is C

going to remain at 220 pounds per month. As long as a generator does not generate

more than 220 pounds of waste per month, that generator is an SQG. The maximum

amount of waste that an SQG can dispose of, in other words, move off-site at one time,

is the amount accumulated (2,200 pounds) provided that no more than 220 pounds of

the accumulated waste was generated in anyone month. Finally, the generator must

dispose of the waste at one of the types of facilities listed in WAC 173-303-070(8) in

order to meet the conditions to be an SQG.

Comment 39: Numerous commenters supported the increase in the accumulation

limits. Several noted that it will help smaller companies manage their waste more

economically and efficiently. They anticipate that this will create more options for

disposal, treatment, and recycling. One commenter who represents 6,300 businesses

felt this rule will be a major benefit to small business, as it will allow them to

accumulate economically viable amounts of wastes prior to having them shipped to

dangerous waste management facilities. ,

Response: Ecology believes that raising the accumulation limit to 2,200 pounds and

establishing a general performance standard provides compelling incentives to properly

manage and dispose of dangerous wastes for persons who qualify as small quantity

October 1995

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generators (SQG). The general performance standard will allow an SQG to select

protective on-site waste management practices that best fit their site. The increase in

the accumulation limit will facilitate proper treatment or disposal by making

transportation of the waste more cost effective.

Comment 40: The change in the accumulation limit means businesses can defer

addressing the cost of managing and disposing of their wastes to future fiscal years.

Generators of 100 pounds per month can accumulate that waste for 22 months before

they reach 2,200 pounds. Then, they have three months to move that waste off their

site. This reduces incentives for toxic waste reduction, reuse, and recycling. These,

impacts need to be addressed in an EIS.

Response: The increase in the accumulation limit will not adversely impact the

incentives for toxic waste reduction, reuse, and recycling. Rather, the increase should

provide additional incentives for proper dangerous waste management including

reduction, reuse and recycling options. Unless a business has not been generating

hazardous waste or has been disposing of their waste improperly, they have already

beenaddressing the cost of managing and disposing of their wastes. Ecology expects

that these businesses will use the flexibility that the increase in the accumulation limit

affords them to optimize their waste management practices. In some cases this will

mean that generators will have off-site treatment or recycling options that were

previously unavailable due to the small quantity of waste that they were allowed to

move off-site at one time. Processes that involve treatment of batches of wastes so they

may be reused, such as distillation of solvents, are more cost effective with larger

batches so they will be more feasible for SQGs to implement. The increase in the

accumulation limit will provide an incentive to manage waste properly since it will be

more feasible for generators to contract with hazardous waste management vendors,

thereby reducing their risk from liabilities for improper management on-site or

improper off-site disposal. The general performance standard also increases the

incentives for proper on-site management of wastes. Prior to Ecology establishing the

general performance standard there was no statewide requirement that SOGs address

potential threats prior to a release of waste. such as waste containers that are in poor

condition but have not failed. In Ecology's experience there are many factors that

provide incentives for toxic waste reduction, reuse, and recycling such as market

image, production costs, worker safety, and waste disposal costs. Although Ecology

anticipates that this increase in the accumulation limit will reduce the waste

management costs for businesses, the cost reduction does not eliminate the benefits

gained from waste reduction, reuse, or recycling.

.Comment 41: The SQG accumulation limit should not be increased. Generators have

the option to accumulate 2,200 pounds now by simply becoming a regulated generator

October 1995

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and following the generator requirements. The generator requirements, including

secondary containment, are not that expensive to comply with and are protective.

Response: Ecology believes that the performance standard is very protective. It

requires that SQGs address potential threats to human health or the environment. Prior

to Ecology establishing the general performance standard there were no statewide

requirements for on-site waste management for SQGs. Ecology believes that the

performance standard will be effective because it allows SQGs to implement protective

on-site waste management practices that best address the unique characteristics of their

sites. This provides SQGs with the opportunity to select the most cost effective waste

management system that will meet the performance standard. There are a variety of

waste management practices that will meet this performance standard. Complying with

the on-site waste management standard portion of the fully regulated generator

requirements is one way. In addition, Ecology will publish BMPs that will provide

additional guidance to generators on the types of waste management practices that will

meet the performance standard.

Comment 42: The accumulation limit should only be increased to one barrel. This

would allow efficient utilization of vendor services. The problems and liabilities with

long term accumulation, container leakage, and impact to workload associated with the

proposed increase to four barrels may offset any additional economic gain to

.generators. Some wastes, such as oil-based paint, that are stored for long periods of

time are actually more expensive to dispose of than those disposed of regularly. C

Response: Ecology chose 2200 pounds (approximately 4 drums) because it provides

SQGs the greatest opportunity to establish a protective and cost-effective waste

management system and is consistent with the federal regulations. Ecology's analysis

indicates that there are significant cost savings to businesses associated with

accumulating 2 drums or more of waste on-site. Ecology believes that the general

performance standard combined with recommended best management practices will

effectively address the possible problems associated with the increase in the

accumulation limits. The commenter's example of the oil based paint waste perfectly

illustrates the site/waste specific nature of effective waste management. Ecology does .

not expect every SQG to accumulate the maximum amount. Rather, SQGs will need to

find the accumulation quantity and time frame that is most effective for their business

considering site-specific concerns, such as waste type, container size, available storage

area, etc. The point of raising the limit to four drums and establishing a general

performance standard is to give SQGs the flexibility to find the protective waste

management routine that works best for them.

Comment 43: The accumulation limit should be set at 1,500 pounds instead of 2,200.

An accumulation limit of 1,500 pounds (approximately 3 drums) would provide SQGs

October 1995

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with reasonable economic options forwaste disposal and would limit the potential for

accidental releases. Many SQGs do not have adequate covered storage for more than

three drums.

Response: Covered storage of waste is not necessary in all situations. If covered

storage is necessary to meet the general performance standard, an SQG would be

limited to the capacity of their covered storage.

Comment 44: The accumulation limit should be raised to 1,100 pounds if funding is

made available specifically for SQG programs. This limit would allow SQGs to

accumulate a full barrel of waste and begin filling a second barrel.

Response: Ecology does not believe that the potential impact to SQG programs

warrants limiting the benefits to be gained by increasing the accumulation limit to

2,200 pounds. Ecology estimates that there will be less than a 3 percent increase in the.

number of SQGs statewide based on analysis of annual report data and information

provided by local jurisdictions.

Comment 45: A few commenters expressed concern that the increase in the

accumulation limits may impact fixed MRW facilities or mobile collection events. One

commenter noted that increasing the amount that may be delivered per person, per visit

from 220 pounds to 2,200 pounds may require larger designated areas for receiving,

processing and storage to accommodate larger volumes of wastes.

Response: Ecology acknowledges that there may be some impacts associated with the

design of fixed facilities and mobile units. However, the increase in accumulation.

limits will provide local jurisdictions with the maximum flexibility to provide the most

cost effective service to their SQGs. If a local jurisdiction is conducting periodic

collection events, they will be able to hold them less frequently and still provide the

same opportunity for businesses in their jurisdiction to remain SQGs.

Comment 46: There will be an increase in the number of SQGs as a result of

increasing the accumulation limits. This will cause an increase in the education and

technical assistance workload to counties.

Response: Ecology acknowledges that there may be an increase in the education and

technical assistance workload to counties. However, Ecology does not believe that the

increase will be significant. Ecology estimates that there will only bea 3% increase in

the number of SQGs statewide, this may vary somewhat from county to county.

Ecology shares the commenter's concerns about the need for education and technical

assistance for SQGs. Ecology I s regional offices are redirecting existing resources to

October 1995

15
provide generators technical assistance on safe waste management. Some of this

technical assistance will be in the form of workshops that SQGs may attend.

Comment 47: Will Ecology provide additional budget allocations to regional Ecology

Solid Waste Services Programs who will be expected to respond to increased

coordination and technical assistance requests from local Moderate Risk Waste (MRW)

programs?

Response: Ecology, as an agency, recognizes the need to support, as much as possible,

the local Moderate Risk Waste (MRW) programs. There is coordination within

Ecology'S Waste Management Division to accomplish that. Although the Solid Waste

Services Program has severely reduced its staffing levels due to a reduced budget,

MRW capability has been retained.

Comment 48: Commenter supports the language of 070(8)(b)(i) and (ii).

Response: Support noted.

Comment 49: Ecology should expand the performance standard of WAC 173-303-

070(8)(b)(ii) with more explicit language regarding management practices. It does not

clearly describe how generators can meet the performance standard. Enforcement may

be difficult.

Response: The purpose of the performance standard is to allow Ecology to take action

in the case of mismanagement of waste prior to a release to the environment.

Examples of mismanagement include drums that are in poor condition but have not

failed, and containers of waste that are unlabeled in situations where mixing of .

incompatible wastes may occur. There are a variety of waste management practices

that will meet this performance standard. Generators can meet the performance

standard by simply following good housekeeping practices or by complying with the

generator requirements. In addition, Ecology will publish BMPs that will provide

guidance to generators on recommended types of waste management practices that will

meet the performance standard. Although prescriptive standards would make

enforcement clearer, Ecology believes that it will be able to prevail in a case of

mismanagement of waste prior to any release to the environment.

Comment 50: Will local health jurisdictions need to submit their Moderate Risk Waste

(MRW) regulations to Ecology for review, to be sure there are no conflicts with the

performance standard? Will local jurisdictions be expected to amend their MRW

regulations to include more stringent performance standards adopted by Ecology? Who

will notify businesses and.local jurisdictions about new or changed performance

standards?

October 1995

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Response: Ecology does not foresee the potential for conflicts and therefore, there will

be no need for local health jurisdictions to submit their MRW regulations to Ecology

for review. The language of the performance standard is intentionally broad. One

reason for this is to ensure that there is no conflict with' specific regulations that local

jurisdictions may choose to adopt. The purpose of the performance standard is to

provide Ecology with the ability to address a situation of waste mismanagement in the

event of a referral by a local jurisdiction or in the absence of local authority. An

example of mismanagement would be drums that are rusted to the point where a release

is imminent. Ecology does not foresee the need for a more stringent performance

standard and believes that the need for one may gradually diminish as more local

authorities adopt specific waste handling requirements. Ecology will provide public

notice to businesses and local jurisdictions in the event that further amendments to these

regulations occur. In addition, Ecology recognizes the need to provide continuing

education to businesses and local governments about these regulations.

Comment 51: Noting current staffing and budget limitations, is it realistic to expect

Ecology to enforce the SQG performance standard? How will SQG enforcement be

coordinated between Ecology and local jurisdictions?

Response: The purpose of the performance standard is to provide Ecology with the

ability to address a situation of waste mismanagement in the event of a referral by a

local jurisdiction or in the absence of local authority. Each incident is prioritized and

Ecology attempts to first resolve issues with businesses without enforcement. It is

Ecology's experience that each local jurisdiction is different in their level of

implementation of MRW provisions of Chapter 70.105 RCW. Ecology, through the

regional offices, seeks to establish working relationships with each jurisdiction in order

to custom fit its available support with the jurisdictionIs needs. Enforcement

coordination issues are addressed through these working relationships. After the

regulations are adopted, Ecology will be coordinating with local jurisdictions to

continue discussing the potential impacts of these amendments and building effective

working relationships.

Comment 52: In Section 070(8)(b)(iii) change "either of which is" to "which is".

Response: Comment noted. The original language will be kept for clarity.

Comment 53: Several commenters supported the use of BMPs in 070(8)(c). However,

one commenter noted that they could be published in a stand alone guidance document

provided that the language was the same as it appears in the regulations and there

would be some opportunity for input by the regulated community prior to amendment

of the document.

October 1995

17
Response: Support noted; however, due to information Ecology received during the

public comment period, the BMPs will not be included in the rule. Instead, they will

be set forth in a guidance document. Ecology generally seeks input from the target

audiences of guidance documents in order to ensure that the documents are effective.

Comment 54: Ecology should delete 070(8)(c). Several commenters requested that the

recommended "best management practices" (BMPs) be published as guidance and not

. included in the regulation. They felt that BMPs in the regulation will cause confusion

about whether or not they are requirements. One commenter felt putting the BMPs in a

guidance document that is periodically mailed to all small businesses in the state is a

better way of communicating those ideas.

Response: After consideration, Ecology decided to remove the BMP language from

the rule to ensure that there is no confusion about whether or not they are requirements.

Ecology will publish the BMPs as guidance.

Comment 55: If the container management standards are converted from regulatory

requirements to Best Management Practices (BMP) in these proposed rules, but the

analogous federal law does not allow for BMP at this time, it is possible the change

would not be found equivalent to the federal program.

Response: Neither the requirements nor the BMPS are found in the federal program. r--) Both are state-only approaches.

Comment 56: Amend "Ecology recommends the use of the standard, yellow,

hazardous waste label" .. The notion that thereis a "standard, yellow, hazardous waste

label" is incorrect. While yellow and red labels are usually used, they are printed in

many different ways. Many of the information blanks on the labels aren't relevant to

small quantity generators. For example, the manifest document number is not needed.

The BMPs should clearly state the minimum recommended information to put on the

label.

Response: Comment noted. Ecology suggests that SQGs simply use one of the

commercially available hazardous waste labels. This will be clearly reflected in the

language of the BMP in the guidance document.

Comment 57: Several commenters urged Ecology to turn the BMPs of Section 070(8)

into requirements. They noted that the increased accumulation limit along with the lack

of specific container management requirements will result in an increased risk to human

health and the environment. Many businesses will realize cost savings due to increased

October 1995

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accumulation limits. The cost to businesses to comply with requirements such as

secondary containment are minimal compared to the cost of cleanup.

Response: Ecology has decided not to change the BMPs into requirements. The

performance standard requires SQGs to manage dangerous waste in a mariner that does

not cause a potential threat to human health and the environment. The purpose of the

BMPs, that Ecology will publish as guidance, is to provide generators with guidance on

how they can meet this performance standard. Ecology believes that there will not be a

significant increase in risk to human health and the environment with the performance

standard/BMP approach instead of more prescriptive requirements. Ecology believes

that the performance standard approach will achieve at least the same, if not better,

results than requirements because 1) the performance standard sets out minimum

requirements, 2) the SQGs have incentives to manage waste safely, and 3) this

approach gives them flexibility to implement an effective system based on their

situation. Ecology believes that it is clearly in the best interest of businesses to

properly manage their wastes on-site. The Model Toxic Control Act (MTCA) liability

associated with improper waste management creates a powerful incentive for ensuring

there is no release of waste on-site. Moreover, there is a widespread waste

management industry that actively markets cost effective equipment designed to help

generators safely accumulate any volume or type of waste. This type of equipment is

relatively inexpensive. For example, a reusable secondary containment pallet for four

drums can be obtained for less than $300. Ecology believes that the performance

standard/BMP approach gives SQGs the flexibility to create an effective waste

management system for their specific needs, while at the same time requiring them to

ensure that they are not creating a potential for harm to the environment. Ecology

believes that flexibility is important because of the diversity of generators and the

variety of effective ways to manage waste. For example, many generators use smaller

corrosion resistant non-metallic containers instead of steel drums to accumulate liquids.

Finally, there is a better system to provide information to generators on proper waste

handling options than ever before. This system includes industry and trade

organizations, Ecology and local Moderate Risk Waste (MRW) technical assistance

personnel, and the waste management industry.

Comment 58: From a regulatory equality standpoint, it seems appropriate to establish

more stringent transportation standards for SQGs transporting more than 220 pounds of

waste. What is the environmental and public health justification for allowing an SQG

to self-transport the same volume and type of dangerous waste a medium quantity

generator would be prohibited from self-transporting? To be equitable, the same

transportation standards should be placed on all generators who transport more than 220

pounds of waste.

October 1995

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• • • • • ••• • • • • • • • • •• •

Response: There is no difference in transportation standards for any generator (SQG

,MQG, or LQG) that is self-transporting. The standards that are designed to protect

the public and environment from hazardous materials (including wastes) while they are

being transported originate from the United States Department of Transportation and

corresponding State of Washington Utilities and Transportation Commission

regulations. Those standards include: container design, labeling, use of a hazardous

materials manifest, and vehicle placarding. These requirements apply to all generators

who are self-transporting regardless of their status under the Dangerous Waste

Regulations. The Dangerous Waste Regulations only add the requirement to obtain an

EPA/State Identification Number and use a Hazardous Waste Manifest (in lieu of a

hazardous materials manifest) for persons (MQG's, LQG's and commercial

transporters) who transport dangerous waste.

Comment 59: Several commenters requested that Ecology establish an accumulation

time limit. One suggested that it be several days and start when one drum is full.

Another suggested an accumulation storage time limit of two years (for 220pounds of

waste and over). Such a time limitation would eliminate the potential risk of

abandonment (possibly resulting from a change in ownership) or compromised storage

(possibly resulting from unreasonable storage times and practices).

(J

Response: An accumulation time limit will not eliminate all potential risk of

abandonment or compromised storage. The risk of abandonment or compromised

storage is not solely time dependent. Instead of a time limit, Ecology added a ()

performance standard which more effectively requires SQGs to prevent a potential ./

threat to the environment. Ecology believes that generator liability in place through the

Dangerous Waste Regulations and the Model Toxics Control Act will minimize the

potential risk of abandonment or compromised storage. Ecology believes that this rule

is consistent with the goals of Dangerous Waste Regulatory Reform.

Comment 60: The BMPs for accumulation of wastes do not provide adequate

enforcement options. With the proposed changes in the Dangerous Waste Regulations,

we at the local level of government will begin to take enforcement actions for those

businesses storing less than 2,200 pounds since they will now be considered small

quantity generators. Enforcement will be much easier and more consistent statewide if

there are state regulations.

Response: Although prescriptive state regulations would make enforcement clearer,

the general performance standard provides a basis for enforcement and does not conflict

with local requirements. Moreover, there are a variety of ways to manage waste that

are protective of human health and the environment. It is important to give generators

flexibility to implement a cost effective system to manage their waste in order to

encourage proper management. The performance standard gives generators that

20

october 1995

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flexibility and provides Ecology with the ability to respond to cases of mismanagement

prior to a release to the environment.

WAC 173-303-071

Excluded Categories of Waste

Comment 61: Reformat the entire section to be consistent with 40 CPR 261.4 so that

the section will be easier to read. The federal structure better describes the regulatory

status of a waste. WAC 173-303-071 is confusing because all wastes identified under

the section are subject to the' same three sections in Chapter 173-303 WAC. Include a

separate section at the end that is a separate state-only exemption section.

Response: Ecology appreciates the commenters' interest in making the rules easier to

understand. The amendments to the Dangerous Waste regulations were proposed in

June, 1995 primarily to accomplish two goals- to implement recommendations of the

Regulatory Reform Project and to incorporate federal requirements. Ecology did not,

at that time, undertake extensive rewriting or reformatting of the state rules. Ecology

recognizes that some of the federal formatting is easier for the reader to follow and will

consider your comments on reformatting the exclusion section during future

rulemakings. One proposed change does address the commenters' concerns- a qualifier

"and as otherwise specified" was added where 071(3) states that all wastes identified

under the section are subject to the same three sections. The qualifier was added to

alert readers that some exclusions do contain other requirements .

.Comment 62: Eliminate the phrase "those sections specified in subsection (3) of this

section" because it is redundant; the context of 071(3) is to specify regulations that are

applicable to all exclusions..It does not make sense to repeat this requirement only at

·071 (3)(k)(i)(B).

Response: Several other requirements are referred to in this exclusion other than the

three that are specified in 071(3). The reference back to 071(3) was included for the

. ease of the reader.

Comment 63: One commenter urged Ecology to adopt all of the federal RCRA

exclusions, including the federal exclusion of solid corrosives, because they have been

studied and debated in depth at the federal level and consideration at the state level has

been far less. Another commenter stated that the federal exclusions should be passed

through at the state level unless the state has a valid reason to be more stringent than

the federal government. If the state has reasons for not adopting federal exclusions,

sound and solid reasons should be presented.

October 1995

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• • • • •• • • • • • • • • • • • •
". . .. • • • • • • • -. .' . ;.i ~-~ £':.•~~~ • • • •

Response: During the Dangerous Waste Regulatory Reform Project, Ecology looked at C'/

the federal exclusions that are not part of the state program to determine' which ones

could be proposed for adoption without endangering human health or the environment.

Several federal exclusions were proposed for adoption this year. Where federal

exclusions were not proposed for adoption, the primary reasons are either that there is a

history of problems with those wastes in Washington, or the exclusions are very broad

and exclude a category of wastes that is not clearly defined. See related comments.

WAC i73-303-071(3)(a) and 802(5)

Comment 64.' Ecology should provide clear direction on the domestic sewage and

permit by rule requirements and reconcile differences with RCRA.

Response: Ecology has initiated an evaluation of discharge of toxics to the sewer

system. A significant part of this effort will be clarification of authorities of the Water

Quality and Dangerous Waste Regulations. Ecology expects to have recommendations

developed in 1996.

WAC 173-303-071(k)

Comments 65: There is a possible inconsistency between the proposed PCB exemption

in WAC 173-303-071(3)(10 and the regulations allowing used oil with low levels of

PCBs to be burned for energy recovery (see WAC 173-303-51O(b)(i)(C)). WOOl used C

oil with PCB concentrations between 2 and 50 ppm could be burned for energy

recovery pursuant to WAC 173-303-515 or Chapter 173-354 WAC. Section 515

covers the marketing and burning of used oil but does not apply to the generation and

storage of used oil. This means that the generator must look to the exemption in Part

071(3)(k) to determine whether generation and storage activities involving WOOl used

oil are subject to the Dangerous Waste Regulations. The proposed exemption provides

that WOOl wastes not regulated under the Toxic Substances Control Act are exempt

when they are stored and disposed of in a manner equivalent to TSCA requirements.

However, TSCA does not address the burning of used oil for energy recovery.

Therefore, language should be added to Part 071(3)(k)(ii) to clarify that the exemption

applies when the WOOl used oil is being burned for energy recovery pursuant to the

requirements of Part 515 or Chapter 173-354 WAC.

Ecology is trying to articulate two different main ideas in WAC 173-303-071(3)(k).

One is an exclusion for storage and disposal pathways managed in accordance with 40

CFR 761, the second is for recycling per WAC 173-303-120(3) and burning per the

500 seriessections. The commenter recommended 2 separate exclusions under

071(3)(k).

October 1995

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Ecology should separate storage and disposal of PCBs versus recycling of PCBs .

Response: Generators have three options for managing low level PCB contaminated

waste oil. First, the waste can be managed as a dangerous waste and disposed under

the requirements of Chapter 173-303 WAC. Second, the waste can be excluded from

the Dangerous Waste Regulations and managed per the TSCA requirements under the

exclusion in WAC 173-303-071(3)(k). Third, if the waste oil is actually "used oil",

then it can be burned for energy recovery under WAC 173-303-515. It is important to

note that these three options for waste management each have their own distinct

management standards. For example, the management standards for low level PCB

used oil burned for energy recovery are found in WAC 173-303-515 and WAC 173-

303-120(3). Management standards for used oil contaminated with PCBs burned for

energy recovery are not used in conjunction with any requirements for designation,

storage and disposal in WAC 173-303-071(3)(k). A separate exclusion is not needed

for PCB contaminated used oil burned for energy recovery. The only requirements for

this waste stream in Chapter 173-303 WAC are found in 173-303-515 and 173-303-

120(3).

WAC 173-303-071(3)(0)

Comment 66: One commenter had a question about the waste pickle liquor sludge

exclusion.

Response: Since that exclusion was not proposed to be amended, the commenter's

question will be answered by separate letter.

WAC 173-303-071(3)(y)

Comment 67: Ecology should omit the language of 071(3)(y) because it implies that

used oil filters managed under Chapter 173-354 WAC, but not recycled under WAC

173-303-120, are subject to full regulation under Chapter 173-303 WAC. The

recycling options for used oil in the exemption are not consistent with the proposed

Chapter 173-303-354.

Response: Ecology believes that it is beneficial to keep the language of 071(3)(y) in

order to provide a recycling exemption for terne plated oil filters that are described in

Chapter 173-354 WAC, but referred to Chapter 173-303 WAC for regulation. The

option to burn the oil removed from the filters for energy recovery will be added.

Language describing the interface between the two regulations will be added when

Chapter 173-354 WAC is adopted.

October 1995

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Comment 68: The proposed language under 173-303-071(3)(y) leaves doubt for

interpretation as to whether used oil filters could be burned in a municipal solid waste

incinerator.

Response: Ecology believes that burning oil filters in a municipal solid waste

incinerator can meet the exclusion described in 071(3)(y). The oil in the filter must be

removed by hot draining or an equivalent method prior to burning. The metal

component remaining in the ash must be recycled as scrap metal.

Comment 69: Ecology should reconsider the decision to forgo adoption of the federal

exclusion for used oil filters that have been gravity hot-drained.

Response: Ecology has proposed a separate regulation, Chapter 173-354, for used oil

and oil filters. The decision to adopt requirements similar to the federal exclusion for

gravity hot-drained oil filters that are not terne plated is part of that rule making.

WAC 173-303-071(3)(r)&(s) Treatability Studies

Comment 70: 071(3)(r) Recommend that Ecology clarify the terminology. The term

"nonacute dangerous waste" should not be coined as there are already too many terms

for the regulated community to interpret. Ecology should use the phrase "dangerous

waste which is not AHW" to properly capture the universe covered by this exclusion.

Response: Ecology agrees that it can be confusing when several different terms are

used and considered using the phrase "dangerous waste which is not AHW" instead of

the term "nonacute dangerous waste". The reason the term "nonacute dangerous

waste" was proposed was because when the longer phrase was used, the sentences

became very cumbersome to read. "Nonacute dangerous waste" means the waste is not

acute hazardous waste (AHW) as defined in WAC 173-303-040.

Comment 71: 071(3)(r)&(s) The commenter strongly supports this proposal which

will increase the allowable limits for contaminated media used in treatability studies.

In many instances, demonstration of treatment technologies requires use of relatively

large quantities of media, especially when contaminant levels are low. This should

have a beneficial impact on cleanup activities conducted throughout the state.

Response: Support noted.

Comment 72: Ecology should pursue a simplified organizational structure of section

071 to enhance its clarity and utility. By having seven layers of embedded hierarchical

subsections; for example, 071(3)(r)(ii)(C)(II)(AA), most readers would be unable to

October 1995

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locate needed guidance. Given the numerous cross references, it is unduly burdensome

to maneuver through this section.

Response: Ecology appreciates the commenter's interest in increasing clarity and

utility in the rules and agrees that it is desirable to have a more simple regulatory

structure. However, even though there are several layers within this exclusion and in

other parts of the rules, it is easier for the reader to find the information than if it was

written in a narrative style. Many of the exclusions, including this one, are identical to

the federal rules and sometimes more confusion is created by trying to rewrite an

existing rule. Ecology will continue to pursue better readability in its rules and would

welcome any specific suggestions.

Comment 73: The commenter supports the proposed rule amendments; in particular,

the changes to the treatability study sample exemption will result in the more rapid

development of more efficient, less costly technologies to clean up environmentally

damaged sites. The proposal will permit testing of new technologies at pilot and

engineering scale which is critical to the proof and adoption of new technologies by site

remediation contractors and potentially reliable persons.

Response: Support noted.

Comment 74: 07l(3)(s) Ecology should elaborate on the definition of a laboratory and

.testing facility. A laboratory and testing facility should be based on each treatment

process and not a physical building or facility. These laboratories or, facilities could

have multiple treatment units located within one building. These treatment units may

perform treatability studies with one waste stream (with multiple treatment processes)

or multiple waste streams (with one treatment). Ecology needs to encourage this type

.of research and reduce barriers to research and development activities.

Response: Multiple laboratories or testing facilities may exist within one building or

facility. Each individual laboratory or testing facility, even if it is located within

another "facility", would be considered a separate laboratory or testing facility for the

purposes of this exclusion if it has its own RCRA ID number. The separate RCRA ID

numbers for each laboratory or testing facility within one building would only be for

the purpose of the treatability studies exclusion.

Comment 75: 07l(3)(s)(iv) The proposed language eliminates the term "laboratory or

testing" which is used in the previous three sections to the detriment of a research

facility. The intent is because Ecology does not want to see large quantities of

hazardous waste sitting around a non-permitted facility without the controls required by

a TSD permit. Unfortunately, it is detrimental to the cleanup effort because the

proposed language would prevent a "facility" from being able to run three or more tests

October 1995

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concurrently with 10,000 kgs each. The issue of each treatment process being able to

treat itself as a separate testing facility needs to be addressed here as well as the

previous comment. The commenter suggests that language be added to allow large

research and development facilities containing multiple technology treatment units to

store up to three times the limits noted earlier in the paragraph.

, Response: As discussed in the previous response, each testing facility or laboratory

will be considered separate for the purpose of this exclusion if it has its own RCRA ID

number. In 071(3)(s)(iv), the word "facility" still means each individual testingfacility

or laboratory that has its own RCRA ID number. In regard to additional quantities of

waste being allowed under the exclusion, Ecology may not be any less stringent than

the federal hazardous waste program. Each testing facility or laboratory that has its

own RCRA ID number, regardless of whether or not it is located within a larger

"facility", is limited to the amounts of waste allowed under the exclusion. There is a

provision in the rule where Ecology may grant case-by-case requests for additional time

or additional quantities. The variance provision was modified to allow advance

approval, on a case-by-case basis, for conducting studies on additional quantities of

contaminated media.

Comment 76: 071(3)(s)(iv)(A). The proposed deletion of the original provision that

excluded treatability study residues from the storage quantity limits places substantial

constraints on an R&D facility with aggressive study schedules.

Response: This provision was deleted because of the overall increase in the amount of

waste allowed under this exclusion. Treatability study residues are now included in the

quantity limitation. The state cannot be less stringent than the federal rule, so the

amount of residue must be counted toward the total amount of waste. That total may

not be exceeded; residues should be removed before additional amounts of waste are

accepted.

Comment 77: 071(3)(s)(v). There is an ambiguous statement in the last two sentences.

The archived material from a treatment process can be accumulated, but it reduces the

amount of total waste the treatment facility can receive for testing. It could put a

laboratory out of business if the archiving were required by regulators. If the process

treats the waste appropriately, it should be amenable to a non-listing, eliminating the

need to treat it as hazardous waste and not require a charge against the total inventory.

Response: If a testing facility or laboratory decides to archive material from a

treatment process (treatability study), up to 500 kg of treated material from a particular

waste stream may be archived for future evaluation for up to five years from the date of

initial receipt. Again, this is a federal provision and the state has no authority to

increase the limits. The quantity of materials archived must be counted against the total

October 1995

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storage limit, that is,' the total amount of waste allowed under this exclusion. If a waste

were rendered non-hazardous it would not have to be counted, but if it remains a

hazardous waste it must be counted.

WAC 173-303-071(x)- (bb)

Comment 78: The commenter supports the proposal to include all of these exclusions.

Response: Support noted.

WAC 173-303-073

Conditional Exclusion of Special Wastes

Comments 79: The commenter wants less not more toxic waste in our landfills. The

law should not be simplified at the expe~se of public health protection.

Some commenters are opposed to the special waste exclusion because they have

concerns about increased groundwater contamination risks.

Ecology must analyze the potential for groundwater contamination in an EIS.

(Special) wastes disposed in solid waste landfills may cause leachate contamination

problems. Even the best landfills can leak and cause problems.

Response: Ecology agrees that it is important to reduce and recycle wastes. However,

some waste will have to be disposed of, and allowing special waste to be disposed in

properly designed municipal solid waste (MSW) landfills presents no more risk than

allowing municipal waste in those landfills. The proposal to allow management of

special waste in municipal landfills is based largely on the fact that the new federal

regulations for municipal solid waste landfills are risk-based and these landfills have

been designed to manage special waste.

Updated facility design requirements for municipal solid waste landfills were

established by EPA in August, 1991. The facility design criteria were based upon

assuring that drinking water maximum contaminant levels (Section 1412 of the Safe

Drinking Water Act) are not exceeded in the groundwater at the point of compliance

within the facility boundary.

As EPA explains in 53 FR 33390, design criteria were developed using the Subtitle D

risk model. EPA entered leachate toxicity data into their model that was based on

average toxicity from leachate resulting from co-disposal of industrial waste with

October 1995

27
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municipal solid waste. EPA noted that several carcinogens that were modelled

presented the greatest risk, and were the drivers for establishing a protection design

standard. It is important to note that industrial nonhazardous waste, as defined by the

EPA, includes special waste as defined in WAC 173-303-040. Consequently, the'

design criteria of "not exceeding drinking water maximum contamination levels

(MCLs) at the point of compliance" is based on landfills receiving municipal waste codisposed with special waste.

This proposal specifies minimum disposal standards for special waste. Ecology

believes that municipal landfills that meet the current requirements provide the level of

protective management for special waste that was envisioned when the special waste

provisions were developed in 1984. These new MSW landfills were designed to

protectively contain wastes of this hazard. The design standards applied at new MSW

landfills were not available when the regulations were developed in 1984. Due to the

designs of MSW landfills in 1984, no minimum disposal standards for special waste

were established at that time. Disposal standards were intended to be based on the

individual waste stream in question. With the advent of the 1991 Subtitle D rule, all of

the special waste can be properly disposed of in the new municipal solid waste (MSW)

landfills, and thus Ecology has no technical basis to continue a case-by-case standard of

review for. special waste.

Municipal Solid Waste landfills provide a level of care suitable for special waste.

Since the requirements for MSW landfills are newer than hazardous waste landfill C"')

requirements, some of these requirements exceed federal requirements for hazardous ./

waste landfilling under RCRA Subtitle C. For example, the state solid waste rule in

Chapter 173-351 WAC exceeds the Subtitle C hazardous waste rule in having more

extensive and explicit requirements for groundwater monitoring and corrective action

(reference detection and assessment monitoring requirements in WAC 173-351-430 and

WAC 173-351-440).

It is important to note that liner design and construction is only one aspect of municipal

solid waste protection. Other aspects of the system include siting, groundwater

monitoring, corrective action, closure cap design, post-closure monitoring (30 years),

and financial assurance. All of these elements of municipal solid waste landfills

provide comprehensive environmental protection.

Moreover, because special waste represents such a small volume of waste compared to

the municipal waste stream in Washington (less than 1% annually), and because the

special waste streams are predominantly low toxicity aluminum smelter waste

contaminated with fluoride, even without the design improvements in new MSW

landfills, there would be no expectation that this additional waste stream would increase

the potential for contaminant releases associated with these landfills. Staff analysis

21

October 1995

()
.' 4) Ecology recently revised the Treatment-by-Generator guidance to make it selfimplementing. Generators now have more options for treating liquid waste onsite in accumulation tanks and containers. By treating liquid wastes so that they

no longer designate as dangerous waste, generators will not be subject to the

Dangerous Waste Regulations.

•

•

Comment 83: One commenter commended Ecology on its efforts to update the

Dangerous Waste Regulations to incorporate increased flexibility and to provide the

maximum latitude in the handling, storage, treatment/recycling and disposal of special

wastes while ensuring that human health and the environment are adequately protected.

Other commenters support special waste as an exclusion.

Response: Support noted.

Comment 84: The goal behind the special waste exclusion can be met by improving

the existing petition process. Some local governments and environmentalists supported

expanded use of a streamlined petition process for exempting wastes. This puts the

burden of proof for safety on the generator. Without the petition process, the special

waste exclusion shifts case-by-case decision-making and waste screening to local

jurisdictions that have less expertise and resourcesto adequately carry out the task.

Response: The petition process is an important part of the Dangerous Waste

Regulations. It allows case-by-case evaluation of waste streams that can be managed in

an alternative manner rather than as required by the Dangerous Waste Regulations.

Ecology will maintain and improve the petition process.

However, the petition process is not the best solution for resolving the special waste

issue. This rule proposal effectively grants a general petition for special waste if

specific conditions contained in WAC 173-303-073 are followed. Case-by-case

decision-making, or waste screening, has not been shifted to local jurisdictions because

the universe of special waste has been carefully defined. By leaving out EHW and

Category C toxic waste from the special waste definition, Ecology has minimized the

need for local jurisdictional waste screening of special waste. Moreover, the type of

landfills allowed to receive the wastes has been narrowly tailored. These landfills must

be designed using the Subtitle D risk based model with a design goal of not exceeding

risk based levels for carcinogens at the point of compliance within the facility

boundary. Leachate contamination estimates used in developing this model were based

on municipal solid waste co-disposed with industrial waste. Washington I s definition of

special waste is a subset of industrial waste. Ecology believes this design standard is

consistent with the intent of the special waste management standards proposed in 1984

and will provide protective management for special waste.

October 1995

30
indicates that because of the low toxicity of special waste, landfills accepting special

waste will not exceed Model Toxics Control Act (MTCA) cleanup levels.

Comment 80: Ecology should expand the definition of special waste to include

Category C toxic waste.

Response: Category C toxic materials were not included in the definition of special

waste because the upper boundary of Category C is defined by materials that fail an

oral rat bioassay at 50 mg/kg, the threshold for the definition of poison. Ecology

believes it would be inappropriate to expose solid waste workers to toxic waste of this

hazard level. Solid waste workers do not have the hazardous waste materials training

that hazardous waste workers do.

Comment 81: Ecology should expand the definition of special waste to include EHW.

Response: Ecology would be particularly concerned about exposing solid waste

workers to EHW. The EPA's listing and testing procedures in 40 CFR Part 261 do not

regulate significant quantities of EHW waste. Wastes that are labeled as EHW have

significant hazard and should be managed by trained hazardous waste professionals.

Comment 82: Ecology should expand the definition of special waste to include liquids.

Response: Ecology believes management for liquid wastes under the special waste

exclusion is inappropriate for the following reasons:

1) Liquids are inherently more difficult to contain than solid wastes and present

greater risk when spilled than solids. That is why liquids were not included

when the "definition of special wastes was developed in 1984.

2) If liquids were included as special waste, the treatment and discharge"

requirements would remain the same; therefore, the cost savings to most

generators should not outweigh the expense associated with having another class

. of waste (special waste) to manage with its own distinct standards.

3) Management of liquid dangerous waste is already complicated. Wastes

discharged under permit-by-rule have one set of requirements, while recurrent

liquid wastes discharged via the domestic sewage exclusion have another set of "

requirements. Creating a classification of contingently managed liquid wastes

would add another layer of complication with marginal benefit to most

businesses.

October 1995

o

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Comments 85: This is another example of the state passing off an unfunded mandate to

local governments.

Ecology is passing on the increased management and disposal requirements of special

wastes to local governments. No cost or impact analysis was prepared. Local

governments have expressed their concern about this to Ecology.

Special waste would take additional time and energy from landfill staff since it would

arrive at landfill facilities separately from solid waste.

Response: Ecology does not anticipate significant additional management

responsibilities for local governments or landfill operators. The conditions associated

with the management of special waste were designed to be enforceable by Ecology so

as to not shift workload to local governments. In addition, the total volume of special

waste generated in Washington represents 0.5-1.5 percent of the municipal solid waste

stream. Therefore, capacity and planning should not be an issue with the few local

,governments that actually have disposal facilities for conditionally excluded special

waste in their jurisdiction. At this point, only a few landfills that meet the

requirements of Chapter 173-351 WAC have expressed interest in accepting special

waste. This rule change does not require landfills to accept special waste.

In regard to worker training issues, Ecology purposefully structured the proposal to

avoid including highly toxic waste so that worker notification would be the extent of

additional requirements for landfill personnel. Ecology does not anticipate the need for

a structured training program with this proposal. The vast majority of states send

wastes of this hazard, and greater hazard, to municipal solid waste landfills with no

worker notification whatsoever.

Comment 86: Insurance requirements are based upon risk and what is going into the

landfill. These costs should be considered in an EIS with this proposal.

Response: Insurance costs are not required to be addressed in the SEPA checklist and

are, therefore, generally not considered in an Environmental Impact Statement. '

However, as part of this proposal Ecology considered insurance and liability issues.

Liability is reflected in insurance premiums for landfills. Ecology surveys indicate that

landfills accepting these wastes will not pay any higher insurance premiums because

insurance rates are based on national standards and most states are already sending this

type of waste'to solid waste landfills.

Comments 87: After years of educating homeowners how to reduce and dispose of

hazardous waste, it does not make sense to allow businesses to landfill waste.

• . '" :,. - ..'.'

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11

October 19;9,5!,
Allowing certain dangerous wastes to be disposed of in landfills contradicts the goal of

waste diversion intended to extend the life of landfills.

Response: Although Ecology emphasizes the importance of pollution prevention,

disposal is .the only option for some waste. Ecology does not believe the conditional

exclusion for special waste contradicts the moderate risk waste mandate of waste

diversion in landfills. The proposal attempts to align management standards for a waste

with the risk that a waste poses. The landfills that will be allowed to accept special

waste are designed to accept this type of waste. Disposal standards for dangerous

waste were first established in 1978 when landfills where not designed to accept special

waste; they were unlined and did not have leachate collection. The current proposal is

an acknowledgement of the increasingly protective controls placed on solid waste

facility design and siting requirements in the last 17 years. Moreover, the special waste

exemption affects only the marginally hazard portion of the "state only" dangerous

waste streams. It does not affect the federal portion of the dangerous waste streams

(approximately 50% of the dangerous waste stream) or the higher hazard portion of the

state-only waste streams (approximately 25% of the dangerous waste streams).

( \

j

This proposal IS neutral on extending landfill life because special wastes are currently

being shipped for disposal to hazardous waste landfills in other states. The special

wastes, therefore, will be going to new landfills instead of the existing landfills. There

should be no change to the regional hazardous waste landfill capacity. This proposal

allows special waste to be managed in-state consistent with Ecology's policy to manage C;

waste as close to the point of generation as feasible.

Finally, disposal of special waste should be reduced by this proposal because it

provides incentives for pollution prevention by reducing the requirements for special

waste that are being treated or recycled and by requiring pollution prevention plans for

special waste being disposed.

Comment 88: Lowering the cost of disposal through this special waste proposal lowers

the incentive for business to reduce, reuse, and recycle.

Response: Generally, the more management or facility design requirements that are

specified for a waste, the higher the cost will be for waste management. Although this

proposal reduces certain management costs, it also provides incentives for pollution

prevention by reducing the requirements for special waste that are being treated or

recycled and by requiring pollution prevention plans for special waste being disposed.

Comments 89: Special waste is regulated more stringently than dangerous waste in that

there are no provisions for satellite accumulation time. We.recommend adding a QEL

for special waste or adding language allowing satellite accumulation.

October 1995

••j

32
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How is accumulation time and labelling addressed, when does it start?

Response: With the final rule it has been clarified that the accumulation clock will

start when 2,200 pounds of special waste is accumulated on site. The waste can be

accumulated on site for 180 days following exceedance of the 2200 pound limit. The

generator can maintain a record of when the accumulation began in any retrievable

form.

Comments 90: Ecology should clarify what is meant by segregation of waste at

transfer stations. Failure to clarify could lead to significant expense.

Clearer language for segregation would be "Transfer station operator has made specific

provisions for managing special waste in transfer stations in a manner that protects

human health and the environment."

Response: For the final version of the rule, Ecology has clarified that segregation

refers to the transfer station itself and refers to "physical segregation, packing or other

means to ensure that workers and the public are not exposed to the waste stream."

Comment 91: Ecology should make clear that generators must provide potential hazard

information to solid waste facilities for information dissemination purposes.

Response: As stated in the preamble, it is Ecology's intent that solid waste workers are

informed of the specific hazard presented by a special waste stream to which they are

potentially exposed. Under WAC 173-303-073(2)(a), the proposed regulation states

that all workers handling special waste must be informed of the waste's hazard, either

through worker training, health and safety plans, or notification on a case-by-case

basis. It is Ecology's intent that generators provide hazard information that

accompanies the waste to its final destination.

Comments 92: Landfills eligible to receive special waste could be designed and

operated under Chapter 173-351 WAC requirements but permitted under other

authorities. Ecology incorrectly indicated that it would be difficult to incorporate the

technical requirements of Chapter 173-351 WAC without the administrative

requirements.

What does Ecology mean by permitted in accordance with Chapter 173-351?We

believe it is possible to incorporate the technical requirements without also including

the administrative requirements by selecting specific citations from Chapter 173-351

WAC.

October 1995

33
Response: Chapter 173-351 WAC contains specific language about the contents of ( /\;

permit applications and the processes for obtaining, modifying, renewing, and reissuing

permits. These administrative requirements are significantly different than the

requirements of Chapter 173-304 WAC. It would be difficult to incorporate the

technical requirements of Chapter 173-351 WAC into another rule without the

administrative requirements as well. Chapter 173-351 WAC allows a facility to

combine a permit for a landfill unit issued under Chapter 173-304 WAC, the Minimum

Functional Standards for Solid Waste, with a permit for a landfill unit issued under

Chapter 173-351 WAC. Ecology believes this is the most appropriate and efficient

way to review the suitability of permits issued under Chapter 173-304 WAC.

Comment 93: Any new solid waste facility permitted under Chapter 173-304 WAC

has substantially equivalent administrative requirements of.Chapter 173-351 WAC.

Ecology should decide on a landfill-by-Iandfill basis which Chapter 173-304 WAC

landfills meet the technical and administrative criteria of Chapter 173-351 WAC rather

than requiring a facility to go through another administrative permitting process to

combine a 304 into a 351 permit.

Response: As noted in the preceding response, the administrative requirements of

Chapter 173-351 WAC are significantly different than the requirements of Chapter 173-

304 WAC. Ecology does not have the resources to make case-by-case interpretations

of comparability of landfills permitted under Chapter 173-304 WAC with landfills

issued under Chapter 173-351 WAC. As noted in the preceding response, Chapter C-";,

173-351 WAC establishes administrative procedures to upgrade a Chapter 173-304

WAC permit to a Chapter 173-351 WAC permit. Ecology believes this is the most

appropriate and efficient. way to review suitability _of a landfill permitted under Chapter

173-304 WAC.

Comment 94: Ecology does not have the technical justification to require liners on arid

design landfills. Ecology needs to compare arid lined data and arid unlined data to

justify their conclusion.

Response: Ecology believes it is appropriate to require special waste to be disposed of

in a facility that has an engineered liner because virtually all new landfills (including

arid design landfills) are now being constructed with liners. Liners are "reasonable"

preventative measures even in arid regions. Without this requirement, a landfill

constructed without a liner could have less expensive disposal rates, thus potentially

becoming a magnet for special wastes.

Comment 95: Ecology should allow disposal of special wastes to lined landfill units in

those states that have obtained equivalency to federal solid waste regulations. Suggest

Ecology addlanguage, "or if out of state" under 40 CFR Part 258.

October 1995

34
•

•

•

Response: Ecology agrees, The rule language was proposed with reference to Chapter

173-351 WAC for solid waste disposal to minimize confusion with disposal under

Chapter 173-304 WAC. However, Ecology is revising theproposed rule language to

reflect the fact that when special wastes are disposed out of state, solid waste disposal

under the federal municipal solid waste standards is comparable to Chapter 173-351

WAC and is therefore acceptable. '

Comment 96: The proposed categorization of a solid corrosive as a dangerous waste is

not needed to protect human health and the environment.

Response: Ecology regulates solid corrosives as dangerous waste because they

represent a potentially serious contact hazard to skin and eyes. With this proposal,

Ecology is allowing solid corrosives to be managed as special waste with an on-siteperformance standard and minimal recordkeeping requirement to ensure that it arrives

at an appropriate disposal site. The special waste proposal also provides in-state

disposal options. Ecology believes this is an appropriate level of care for wastes of this

hazard.

Comment 97: With the special waste proposal we expect an increase in out-of-county

waste received by our landfill.

Response: This rule does not take away the rights of local government or landfill

operators to refuse' any waste stream or class of wastes from a landfill. Locallandfills

often have their own waste screening requirements in addition to state minimum

regulations, and those screening requirements will not be changed by this rule.

Comment 98: Yakima County-owned landfills are of arid design with no liners.

Conditionally exempt small quantity generator special waste should not be sent there.

Response: This rule will not allow special waste to be sent to arid design landfills

unless they have an engineered liner consistent with the requirements of Chapter 173-

351 WAC. Management standards for small quantity generator (SQG) waste are

established by local governments as part of moderate risk waste programs. Small

quantity generator waste is not considered special waste.

Comment 99: Support the special waste bill-of-lading.

Response: Support noted.

Comment 100: Ecology should allow for incineration of special waste in the same

manner that it is allowed for municipal solid waste.

October 1995

35
O· Response: With this proposal, Ecology was able to compare landfill design standards

for municipal solid waste with the hazard associated with special waste. It is more

difficult to compare the level of protectiveness of incineration standards with the hazard

associated with special waste streams. Such a comparison was beyond the scope of this

proposal.

Comment 101: The special waste provision does not simplify the rule but rather adds

an additional layer of regulation.

Response: The regulatory reform project has several goals besides simplification, one

of which is to tailor management standards for special waste to the risk of the waste.

The major emphasis for the conditional exclusion for special waste was creation of

tailored management standards. The new special waste exclusion sets forth the

minimum management and disposal standards for special waste. Moreover, with this

exclusion, Sections 550 and 560 will be deleted from Chapter 173-303 WAC, thus,

simplifying the rule.

Comment 102: The special waste proposal conflicts with our county ordinance which

contains screening standards for dangerous and high risk wastes.

Response: Several counties in the state have additional requirements for wastes being

sent to landfills. The special waste proposal does not conflict with county ordinances

which establish screening standards for waste received at landfills because it does not

supersede any local government requirements. Ecology fully supports counties

establishing their own waste management standards.

Comment .103: The definition of special waste is confusing and can be clarified by

reordering words in the proposed definitions so that "not" falls at the end of the list of

included special waste rather than before.

Response: This suggestion has been incorporated with the final rule.

Comment 104: SQGs should not be required to comply with regulations affecting

special waste that exceed those for other wastes excluded because of QEL. .

Response: Management of SQG waste is conditionally excluded from the Dangerous

Waste Regulations per 173-303-070(8)(a) and (b). Small quantity generator waste is

managed according to WAC 173-303-070(8) and local government moderate risk waste

plans and is, therefore, not subject to the conditional exclusion for special waste unless

an SQG has special waste and exceeds the QEL or accumulation quantitiy. Then, they

are no longer SQGs.

October 1995

.-36 -
•

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Comment 105: It is unclear how much material currently regulated as dangerous waste

will be managed as special waste and how much will be managed as solid waste.

Response: During 1989-1991 special waste generation varied from 18,000 to 53,000

tons, representing about 25 % of the total recurrent dangerous waste stream (50% of the

state-only recurrent dangerous waste stream). Most of that waste stream is from a

handful of aluminum smelters in the state. With respect to solid waste, it is difficult to

estimate the effect of adjusting the fish bioassay from 1,000 mg/L to 100 mg/L. At

100 mg/L the fish bioassay is still a very sensitive test. Ecology's estimate is that

25 percent of the "state-only" dangerous waste stream would become solid waste with

the proposal, or on the average just under 20,000 tons per year.

Comment -106: Agree that special waste should only be handled at facilities that have

agreed to take it.

Response: Comment noted.

Comment 107: We recommend that rail facilities be subject to the same restrictions

affecting the handling of special waste as those imposed on transfer stations.

Response: Ecology does not know of any opportunities for worker exposure at rail

loading facilities, Rail loading facilities involve transfer of containerized waste. If

there is transfer of waste outside of containers at rail loading facilities, the facility

would be considered a transfer station and the same requirements for special waste

management at transfer stations would apply.

Comment 108: The special waste exclusion should include provisions for transport and

handling of special waste where waste export is the primary method of handling solid

waste.

Response: The primary reason Ecology developed regulations for managing wastes in

transfer stations was to accommodate counties that export wastes. Ecology determined

that no additional provisions would provide benefits for exportation.

Comment 109: Segregation of special waste at the transfer station is almost impossible"

because the waste is usually commingled by the generator at the point of generation.

Response: Generators are required to have special waste clearly identified separately

from the solid waste stream. If it is not clearly identified, Ecology would assume the

whole waste shipment to be special waste and subject to all of the conditions of the

exclusion.

October 1995

37
Comment 110: Would a permit for special waste management be required by local

government?

Response: No special waste permits are required with this rule proposal. At the

discretion of a local government, a solid waste permit may be modified to reflect the

fact that special waste can be received by a facility.

Comment 111: Change, page 22, "Special waste" means any dangerous waste that is

solid only, to "Special waste" means any state-only dangerous waste that is solid only.

Response: This suggestion has been incorporated into the final rule.

Comment 112: In WAC 173-303-073(2)(a) Ecology should clarify what kind of

written record is required, a label or a log. If it is a log, how long should it be

maintained.

Response: A record of special waste accumulation should be maintained for 5 years.

The record can be in any legible, retrievable form ..

Comment 113: The paperwork burden for special waste is still onerous. It includes

cradle to grave tracking and annual reports. Even though certain forms are not

specified by regulation, the paperwork burden has not been significantly reduced.

Response: Ecology proposed the minimum amount of paperwork necessary to track

special waste, ensure worker safety, and implement pollution prevention. Cradle to

grave tracking is important to ensure that special waste is recycled or disposed of

properly. Annual reports are necessary to monitor pollution prevention progress.

Under the conditional exclusion, there will be significantly less paperwork for

generators of special waste, than for generators of dangerous waste. There are no

longer requirements for personnel training plans, preparedness and prevention plans,

contingency plans, and emergency procedures. These are all required of dangerous

waste generators, but not special waste generators.

Comments 114: The rule imposed more requirements for recycling special wastes than

disposing of them. For example, the management requirements for disposing of special

waste are performance standard based while the rules for recycling prescribe specific

standards (e.g. WAC 173-303-073(2)(g) and 173-303-120(3) and (4). They are not

completely exempt from regulation and thus still carry the stigma of "dangerous

waste." Ecology should completely exempt from regulation recycling of dangerous

waste.

October 1995

38

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Special waste should be excluded from recycling requirements of WAC 173-303-120

and Sections 500 to 525 (except 510) if the waste is legitimately recycled.

Section 073(2)(g) Recycling ... should be numbered (8)(h).

Response: In the final rule, WAC 173-303-073 will be revised such that there are no

more requirements for wastes being recycled than for wastes being disposed. Two

subparagraphs "g" appeared in the proposal. The second one, regarding recycling and

treatment of special wastes was deleted.

Comment 115: Would a waste with an E.C. below the 0.001 % designation limit

considering X-C constituents qualify for a special waste where the result at BC

inclusive of any category waste is above .001%. We recommend that it is a special

waste.

Response: If the equivalent concentration of a toxic dangerous waste is equal to or

greater than .001 % and less than or equal to 0.01 % and the waste is "state only" and

solid (and not BHW by the persistence classification), then the waste is special waste.

It is immaterial whether X through C category toxic constituents are in the waste as

long as the equivalent concentration is less than or equal to 0.01 %. This is because if

the equivalent concentration is equal to or greater than 0.001 % and less than or equal to

0.01 % the waste has a hazard comparable to Category D toxic waste.

Comment 116: If municipal solid waste landfills receive special waste which includes

such things as PCB contaminated material in excess of the Model Toxics Control Act

(MTCA) cleanup level, they will become MTCA sites and ultimately the public will

pay for cleanup.

Response: Hazardous constituent levels within a solid waste landfill do not determine

if a landfill becomes a cleanup site. The site must release contaminants into the

environment in excess of water quality standards to become a Superfund site. As stated

in preceding responses, Ecology is proposing sending wastes only to facilities that were

designed to accept these wastes and contain them.

Moreover, as a part of the Regulatory Reform Advisory Committee meetings Ecology

calculated the affect of the entire special waste stream being sent to only one landfill in

the state. The analysis demonstrated that the special waste stream would not cause the

landfill to exceed MTCA cleanup levels because 1) the volume of special waste is

. minimal in comparison to municipal solid waste, and 2) the hazardous constituent

concentrations of solid waste are relatively low.

October 1995

39
Hazardous constituents are common in municipal solid waste streams that exclude C

"special waste." The hazardous constituents in municipal sold waste streams are found

in a variety of wastes including such things as plastic products, coffee filters, and

newsprint. Municipal solid waste design standards already account for these types of

hazardous constituents.

Comment 117: At what level has Ecology ordered landfills to clean up PCBs? We

would like a comparison of that level with levels that would be allowed in landfills

under the new proposal including PCBs disposed of at similar levels which now have

been required by Ecology to be cleaned up. Thirdly, what is the fatal cancer risk that

triggered these cleanup orders? This should be explicitly stated in an EIS. And what

assurance do we have that future landfills will not need to be cleaned up?

Landfills that will accept the low level PCBs are designed, operated, and sited to

manage low level PCBs in protective manner. By clarifying the management

requirements for certain low level PCBs and allowing in-state disposal options for these

low level PCBs, this proposal will simplify cleanup and disposal of PCB contaminated

wastes that are generated at uncontrolled sites and thus reduce cancer risk from PCBs at

these uncontrolled sites.

Comment 118: Landfills are allowed to take free liquids and of course, hazardous

waste landfills are not allowed to take free liquids. Liquids mobilize toxic and

carcinogenic waste to move into. groundwater or surface water.

October 1995

40
• Response: Free liquids are prohibited in municipal solid waste landfills per WAC 173-

351-200(9) and prohibited in other landfills in the state per the Minimum Functional

Standards for Solid Waste Handling per WAC 173-304-460.

WAC 173-303-081 and -082

Discarded Chemical Products and Dangerous Waste Sources

Comment 119: Two comrnenters support the modifications to sections WAC 173-303-

081 and 082. The changes improve the consistency between the federal regulations for

listed waste management and designation. Consistency between state and federal

regulations is important because it affects how reports and shipping papers are

completed.

Response: Support noted.

WAC 173-303-083

Deletion of Waste Codes Following Equipment Cleaning & Replacement

Comment 120: Supports the addition of this section (Deletion of waste codes following

equipment cleaning and replacement). Incorporating federal provisions for consistency

• and making the rules easier to implement is always a good idea.

Response: Support noted.

·WAC 173-303-090

Dangerous Waste Characteristics

WAC 173-303-090(4) Quantity Exclusion Limit

Comment 121: Change "quantity of his waste" to either "quantity of his or her

generated waste" or "quantity of their generated waste" in keeping with the rest of the

document.

Response: The change will be made for consistency.

WAC 173-303-090(6) Corrosivity Characteristic

•

Comment 122: One commenter supports Ecology's move to establish the "W" code

for state-only corrosivity characteristic. Using the WSC2 code will help the regulated

October 1995

41
"

community out in several ways, including how to meet land disposal restriction

requirements and in the completion of documentation and reports for the respective

waste streams.

Response: Support noted.

Comment 123: The code given to solid corrosives, WSC2, does not conform to the

format established by the other Washington State Codes. One commenter recommends

changing this code to WC02 since the carcinogen criteria and code are being deleted.

Response: Ecology agrees that using two consonants "SC" for "solid corrosive" does

not conform to the single consonant format. However, it is a logical identification for

solid corrosive waste and Ecology is concerned that "WC02" will be associated with

the carcinogenicity criteria for some time to come.

Comment 124: Ecology should consider revising it's regulation of solid corrosives.

The proposed categorization is not needed to protect human health and the environment

and it is not consistent with Ecology Is reasoned approach for excluding wood ash from

the Dangerous Waste Regulations. In 1994, Ecology excluded from the Dangerous

Waste Regulations wood ash which designates solely for corrosivity. Wood ash is now

managed per the solid waste regulation.

Response: The solid corrosive class of wastes includes many chemical compounds 0

from a wide variety of generators. Solid corrosives can present a serious eye and skin

contact hazard. Ecology believes that it is inappropriate for solid corrosives to be

placed into solid waste garbage cans and dumpsters because of the contact hazard and

the fact that solid waste management personnel may not be aware of their presence.

This is the type of solid waste collection system utilized by most generators. Ecology

believes that management of solid corrosive wastes under either the provisions of the

full Dangerous Waste Regulations or the special waste exclusion provides the

appropriate level of protection for this waste class. Under either of these management

systems generators have options other than disposal. Typically, generators of small

volumes of solid corrosive wastes neutralize the wastes on-site.

With respect to the decision to exclude wood ash, Ecology's decision was based on:

1) The fact that generators of wood ash, because of the large volumes, have dedicated

collection and transportation systems which make the hazard visible to personnel.

2) The fact that the large volumes of wood ash generated make use of the material as a

soil amendment or concrete ingredient viable. However, both of these uses for wood

ash involve "land placement" so the product had to be "manifested" to the user. This

requirement, unique to recyclable materials being used on or in the ground, served as a

October 1995

42

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road block in opening markets for wood ash as a soil amendment or concrete

ingredient. The exclusion serves to remove this roadblock and promote reuse.

Given information available to date, this logic does not appear to hold for other solid

corrosive wastes.

Comment 125: Ecology excluded the wood ash dangerous waste stream in 1994.

Wood ash is a solid corrosive and Ecology does not have a technical basis to continue

to regulate solid corrosives as dangerous waste.

Response: The wood ash exclusion was adopted based on an evaluation of a specific

waste stream. The evaluation included present management practices, barriers to reuse

and recycling, and specific hazards presented by the wood ash.

Solid corrosives represent a broad range of both acid and base wastes that have a

variety of handling practices applied across the state and can present a serious contact

hazard to skin and eyes. Ecology believes that the special waste conditional exclusion

is an appropriate level of care for solid corrosives based on the hazard presented by

them. Also, Chapter 173-303 WAC establishes procedures for petitioning Ecology to

allow alternative management practices for waste streams regulated as dangerous waste.

.WAC 173-303-090(8) Toxicity Characteristic

Comment 126: WAC 173-303-090 should be modified to reflect Ecology's intentions

in the preamble discussion ofEHW with respect to how labs do the TCLP test.

Response: The point of the preamble discussion was apparently not clear.

Laboratories do not need to determine the actual TCLP concentrations in the waste,

only whether the waste exceeds the TCLP concentrations or not. In this rule making,

Ecology has eliminated the EHW concentrations of TCLP constituents.

Comment 127: Two commenters support the deletion of EHW requirements pertaining

to the federal characteristics. One commenter also supported Ecology's position that

the Federal Land Disposal Restrictions and the EHW requirements are redundant.

Response: Support noted.

WAC 173-303-100

Dangerous Waste Criteria

WAC 173-303-100(5) Toxicity Criteria

October 1995

43
Changes to Book Designation Process

Comment 128: Several commenters support deleting the "Nevada" graph and Toxic

Dangerous Waste Table in Sections 173-303-9906 and -100, respectively. One

commenter felt these changes will avoid confusion and reduce the likelihood of

misinterpretation.

Response: Support noted.

Comment 129: Using the book designation procedure under the current regulations, a

waste with an equivalent concentration ofjust above 0.1 % would not be designated as

EHW unless the monthly generation amount exceeded several hundred pounds. Under

the proposal, 2.2 pounds of the same material would have to be classified as EHW due

to the elimination of the Nevada graph. There has been no justification given for

eliminating the factor of quantity from the EHW designation under the book

designation procedure.

Response: There is an error in the narrative explanation of the equivalent

concentration formula. EHW should be an equivalent concentration equal to or greater

than 1. This corresponds to a waste that is at least as toxic as a 100 percent toxic

category B waste. Ecology acknowledges that under the current regulations, a waste

with an equivalent concentration of 1.0 would not be designated as EHW unless the

generation amount exceeded approximately 60 pounds. Under the proposal, 2.2

pounds of the same material would have to be classified EHW. Ecology has not

eliminated the factor of quantity. It is embodied in the Quantity Exclusion Limit

(QEL). This simplifies designation by regulating wastes of comparable hazard at the

same quantity (e.g. state toxic EHW and federal AHW). Wastes that are toxic category

B, A, or X are highly toxic and would carry the signal words "poison" or "danger" as

pesticides. In Ecology's experience, these wastes can pose significant risks to human

health at quantities far lower than 60 pounds when they are not managed as dangerous

waste.

Comment 130: WAC 173-303-100(5)(a) state that a person can determine toxicity

designation based upon known toxic constituents and concentrations. Therefore, it is

not necessary for the waste generator to pursue costly and extensive testing for

unknown or unexpected constituents, but rather can base toxicity designation upon what

is known (within reason) about a waste stream. Please confirm that the proposed

amendments to the designation procedures (e.g., WAC 173-303-070(5), bioassay

testing) are not intended to impose additional requirements on the waste generator with

regard to the ability to designate waste upon known constituents and concentrations.

..

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October 1995

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• Response: Ecology has not made changes in the Dangerous Waste Regulations that

affect when a waste generator may use process and waste knowledge to designate

waste.

Comment 131: Ecology should delete the phrase "except as provided in WAC 173-

303-070(4) and (5)" in Sections -100(5), -lOO(5)(a), -100(6), and -100(6)(a). With the

changes occurring in Sections -070(3)(a)(iv), -070(4), and -070(5), it is inappropriate to

use this phrase in these four locations.

-------------------------._-------- -- - ----------- ------- --- --- --- -~-- - - - - -.-- ------

Response: Ecology will delete the reference to WAC 173-303-070(5) from 100(5)(a)

and 100(6)(a) since it states when generators must designate waste under Section 100(5)

and 100(6) and does not affect whether a generator may use knowledge. Since no

amendments to WAC 173-303-070(4) are proposed, those references are still

appropriate.

WAC 173-303-100(5)(b)(i)

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Comment 132: Ecology should clearly define "available data" and "other source

reasonably available to a person" under the book designation procedures at

100(5)(b)(i).

Response: Generally, these include but are not limited to: Material Safety Data Sheets

(MSDS), laboratory analysis of the generator's waste or a similar waste, and published

toxicity data. Ecology will provide examples in guidance documents rather than

defining them in the regulation to avoid precluding the useof a data source.

Comment 133: Ecology should delete the footnote to the Toxic Category Table and

rely on the definition for "FISH LCso" in Section -040. This will result in a consistent

approach since "inhalation LCso" is entered this way in -040.

Response: Ecology believes the footnote provides useful clarification for people

interpreting the table for waste designation. Ecology's experience is that most users of

the rule will not reference the definition section during book designation. Rather than

delete the footnote to the table, the definition for inhalation LCso will be moved from

the definition section to the footnote for consistency.

WAC 173-303-100(5)(b)(ii)

Comment 134: Ecology should correct the spacing between the numbers in the

example at 100(5)(b)(ii).

Response: Comment noted. The spacing in the example will be corrected.

October 1995

45
WAC 173-303-100(5)(b) and (c)

Comment 135: The current definition of dangerous waste: If it kills 50% of rats

exposed in a test at concentrations of anything greater than 5000 mg/kg. This is called

an oral rat LDso of 5,000 mg/kg.

Response: An LDso is a calculated dose of a material which is expected to cause the

death of 50% of those organisms exposed under defined conditions of the test. An oral

rat LDso is that dose determined experimentally by exposing rats to the material via diet

or gastric gavage. Under Chapter 173-303 WAC. Ecology does not require an LDs&

be calculated to identify a dangerous waste. If LDso data exist, these can be used as

part of the waste designation process. The dangerous waste oral rat bioassay simply

determines if the waste exhibits an LDso above or below the regulatory threshold of

5000 mg/kg. If the waste LDso is less than or equal to the regulatory threshold, the

waste fails the bioassay and designates as dangerous waste.

Comment 136: The new definition for requiring waste to go to a hazardous waste

landfill and to be fully regulated: Concentration greater than 500 mg/kg.

Concentration of the toxic waste in the waste would now be 10 times higher before

having to go to a hazardous waste landfilL

Response: The waste designation level of 500 mg/kg oral rat is the level used to define

special waste (state-only solid waste). If a specific set of conditions are adhered to,

special waste can be disposed in municipal solid waste landfills compliant with Chapter

173-351 WAC. Wastes of greater though still marginal toxicity can be managed in

MSW landfills with this rule change. As noted in responses to comments in Section

073, modern municipal solid waste landfills have been designed to protectively manage

these wastes when they are co-disposed with municipal solid waste. Furthermore,

special waste has always had a lower standard of care than dangerous waste. This rule

amendment establishes minimum disposal requirements for special waste where none

existed before.

Comment 137: I want less not more toxic waste in our landfills. The law should not

be simplified at the expense of public health.

Response: The fish bioassay was revised from 1000 mg/L to 100 mg/L to calibrate the

fish bioassay with the rat bioassay of 5000 mg/kg. The rat bioassay is based upon

standard hazard classifications. Wastes of lower toxicity than 5000 mg/kg oral rat have

a hazard comparable to solid waste and are appropriately managed in solid waste

landfills. By retaining the rat bioassay testing level of 5000 mg/kg, the Washington

State Dangerous Waste Regulations are among the most protective in the nation.

·October 1995

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Comment 138: The Golder report supports the testimony of Heart of America that the

fish bioassay is highly flawed and results in nondesignation of waste if tested using the

rat test.

Response: The Golder Associates report is fully supportive of Ecology's conclusion

regarding the comparison of the fish bioassay with the rat bioassay. The report

concluded that the fish bioassay is, on average, 200 times more sensitive than the rat

bioassay. The report went on to support Ecology's conclusion that a 50: 1 ratio of

rat:fish bioassay thresholds would be a closer alignment than the present 5: 1 ratio. The

report also supports Ecology's conclusion that approximately 70% of the constituents

used in the test comparison demonstrated a rat LDso:fish LCso ratio equal to or greater

than 50: 1 while approximately 30% demonstrated a ratio less than 50: 1. Therefore, for

the majority of chemicals used in this comparison there was a 50: 1 ratio between the

fish and the rat bioassays; the fish test had greater or equal sensitivity than the rat test.

Comment 139: Encouraging use of the fish bioassay test for toxicity will result in

significant, environmental impacts by not designating all dangerous waste as dangerous

.and increasing the amount of special waste eligible for disposal in solid waste landfills.

Golder's data showed that to capture all toxics reviewed, the fish bioassay should be

431 mg/L instead of 100 mg/L. Therefore, Ecology should double 431 mg/L for a

conservative level of protection of 860 mg/L, The use of a mean or median from a

self-selected list of toxins is not an acceptable mode for selecting the state's toxic

designation level for the fish bioassay test.

Ecology explicitly intends to encourage tests rather than book designating although for

30% of the chemicals (pg 5, Golder Report) for which data are available, the difference

in sensitivity between the fish and rats is less than the 50 times on which the

realignment is based.

Response: Ecology's goal is to make the fish and rat tests of comparable stringency.

When the tests are of comparable stringency the disincentive for using the fish bioassay

is removed and more generators will use the fishbioassay to test their waste.

Ecology's objective of encouraging actual waste testing will be furthered by adjusting

the fish bioassay to 100 mg/L. It would be inappropriate to propose the fish bioassay

at 431 or 860 mg/L as suggested. Based on the data, this would ensure that in virtually

all cases the fish bioassay would be a more stringent test than the rat bioassay. This

would create a largedisincentive for generators to testtheir waste for waste designation.

purposes, because rat bioassays are generally not conducted because of expense and

lack of availability. Generators would, therefore, continue to book designate waste

rather than perform bioassay tests.

October 1995

47
Comparable stringency was determined by reviewing a wide range of constituents for

which fish and rat bioassay data were available and determining bioassay levels which

have comparable test failure rates (test failures result in designation of waste streams as

dangerous). Ecology's analysis indicated that the best test comparability to a rat

bioassay at 5000 mg/kg was a fish bioassay at 100 mg/L. At this level, 40% of the.

constituents used in the test comparison had relatively greater sensitivity to the fish

bioassay relative to the rat bioassay, 30 % had relatively greater sensitivity to the rat

bioassay, and about 30% were comparably sensitive to both bioassays. This is a much

better test alignment than maintaining the fish bioassay at 1000 mg/L which results in a

more sensitive fish bioassay in virtually all cases.

In terms of accurate waste identification .and environmental protection" conducting a

bioassay is a superior waste identification procedure than estimating a waste's toxicity

via book designation using rat bioassay data found in the literature. For book

designation, the occurrence of constituents in a waste stream is estimated and the

concentration of these constituents is also estimated. This estimating makes it difficult

to account for any synergistic effects of multiple constituents in waste streams.

By comparison, there is no estimation in a bioassay. The result of the test is the

complete integration of all constituents acting simultaneously on an organism. This is a

far more accurate and reproducible way to identify wastes than book designation. The

vast majority (over 90%) of generators are not using bioassays to designate dangerous

waste. This is because the rat bioassay is very expensive and the fish bioassay has long

been regarded as overly sensitive. Revising the fish bioassay from 1000 mg/L to 100

mg/L will remove disincentives for testing resulting in more accurate waste

designation, and, thus, will provide greater environmental protection.

The fish bioassay is intended to be used in conjunction with EPA lists and

characteristics as well as with Ecology's persistence, corrosivity and PCB

classifications in order to provide useful information to define a standard of care for a

waste.

Comment 140: In the Golder Report, 39 percent of chemicals used were pesticides.

Fishare more sensitive to pesticides than rats. Golder's finding that the trout.rat

sensitivity was 200 times more sensitive was based on a median. Golder debunks the

use of a median because it ignores the wide range in the data (pg. 7).

Response: Ecology acknowledges that data suggests the fish bioassay is relatively more

sensitive than the rat bioassay for pesticides. Nonetheless, the fish/rat comparison

covered a 'broad range of organic and inorganic constituents and the analysis would be

remiss without pesticides represented in the comparison. Moreover, the Golder

October 1995

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Associatesreport (pg. 8) notes that with pesticide data removed, the fish bioassay is

still 75 times more sensitive than the rat.

The Golder report does not debunk the use of a median ratio for comparing bioassay

data. It acknowledges the wide range in data represented by the median. This is

consistent with Ecology's independent comparison of bioassay data. The important

point to remember is that the Golder Associates report concluded that revising the fish

bioassay from 1000 mg/L to 100 mg/L was a sound proposal to make the tests more

comparable.

Comment 141: Fish-exposed to lead when tested for toxicity using the fish bioassay

test, according to Bell et al., (1993) cited by Golder on page 4, arejust.37.5 times as

sensitive as rats in the bioassay test. Thus levels of lead which would fail book

designation or a rat bioassay would not be subject to any regulation for disposal under

the proposed realignment for the fish test which is based on a fifty fold sensitivity. For

lead, the fish bioassay realignment is 33% under the level of equivalency for toxicity

using the rat bioassay.

Response: Bell et al., (1993) as cited by Golder Associates, reported that lethal body

burden (not LDso) for lead administered by injections, was 37.5 times less in fish than

in rats. Because le'thal body burden is not equivalent to LDso or LCso, it is not

appropriate to compare lethal body burden ratios with LDso:LCso ratios. In addition to

its toxicity to rats and fish, lead is regulated by the EPA as a hazardous constituent

under their TCLP characteristic.

Comment 142: The 'fish toxicity level is proposed to be ten times less protective

compared to existing law.

Response: Adjusting the fish bioassay level from 1000 mg/L to 100 mg/L is a ten-fold

reduction in concentration of waste in solution used in a standardized bioassay test.

Adjusting the bioassay's solution concentration does not reflect proportionately on

environmental protection:

For example, many pesticides and metals such as copper and nickel will cause fish

bioassay failure at 0-10 ppm in solution. Comparing those numbers to typical

concentrations of these constituents in waste, it is clear that many waste streams, for

example many waste streams containing pesticides and metals, will fail the bioassay at

100 ppm as well as 1000.ppm. Therefore, the level of regulation would not change.

Ecology's best estimate is that approximately 25 percent ofthe state-only recurrent

dangerous waste stream (12.5% of the total dangerous waste stream) that represents a

class of hazard comparable to solid waste would become regulated as solid waste with

October 1995

49
the proposed revision to the fish bioassay. Solid waste facilities have been designed to

manage wastes of this hazard level. Therefore, the solid waste regulatory system is an

appropriate level of care for these wastes.

Comment 143: According to Ecology staff, 40 percent of the waste tested at 100 mg/L

passed the fish bioassay despite failing the rat bioassay.

Response: After revising a broad range of hazardous constituents, Ecology concluded

that even with a shift of the fish bioassay from 1000 mg/L to 100 mg/L the fish

bioassay is still more sensitive on average to toxicants than the rat bioassay. This is

documented in Issue Paper #3 which was developed during the proceeding of the

Dangerous Waste Advisory Committee Regulatory Reform Project. Specifically, with

the proposed shift Ecology determined that 30 percent of constituents were less toxic to

fish than rats and 40 percent were more toxic to fish than rats (30 percent were

comparable toxicity). These results are very similar to the results obtained

independently in the Golder Associates report for an even broader database.

Comment 144: Ecology has not demonstrated a basis for regulating waste at a

threshold of 5000 mg/kg oral rat (Category D).

Response: Ecology believes Category D toxics should be regulated as dangerous waste

because an oral rat LDso of 5000 mg/kg is generally recognized as the starting point for c\.

classifying materials as hazardous (see e.g., National Academy of Sciences 1974

System for evaluation of the hazards of bulk water transportation of industrial

chemicals, Report AD-782 4-76). Ecology's carcinogen list review indicates that

significant numbers of carcinogens will also be captured as dangerous waste by

maintaining this dangerous waste designation level of 5000 mg/kg. Ecology

acknowledges that wastes that fail a bioassay at 500 to 5000 mg/kg oral rat are less

hazardous than wastes that fail the bioassay at concentrations less than 500 mg/Kg.

Therefore, in order to tailor management standards to the waste toxicity, Ecology

proposed excluding these wastes from the Dangerous Waste Regulations when specific

conditions are met.

Comment 145: Ecology acknowledged that for true comparability with the rat bioassay

EHW test, the fish bioassay should be conducted at 1 mg/L. Ecology then arbitrarily

selected the level of 10 mg/L for regulation because of problems with test methods

when a 1 mg/L solution of waste is used for the fish bioassay. Ecology should

. consider revising the fish bioassay to accommodate the test at 1 mg/L.

Response: Ecology acknowledges that in order to be consistent with the rat EHW

bioassay, the fish EHW designation level should be 1 mg/L, not the 10 mg/L level that

was proposed in the rule. The reason Ecology proposed 10 mg/L is because Ecology's

October 1995

50

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experience has been that as the waste quantity decreases in a fish bioassay procedure,

the variability of test results increases. A fish bioassay conducted at 1 mg/L would not

be a reproducible test. The 10 mg/L level proposed for the EHW designation level

using the fish bioassay will be a more reproducible test than a test conducted at I

mg/L. There fore, at this time Ecology does not believe it is appropriate to try and

adjust the fish bioassay test methodology. Ecology's experience has been that when

using nonstandard testing approaches for dangerous waste identification, they are not

wen received by the regulated community or laboratory analysts.

Comment 146: Since there is a chance that dangerous waste will get in the river, the

fish bioassay should be maintained at 1000 mg/L.

Response: By adjusting the fish bioassay from 1000 mg/L to 100 mg/L, certain waste

that is presently regulated as hazardous will be regulated as solid waste. This is

reasonable however, because wastes thea pass the bioassay at 100 mg/Land higher

concentrations have a hazard comparable to solid waste. As mentioned in preceding

comments, solid waste must be managed in facilities that are designed to handle this

level of hazard and to keep the waste from reaching waters of the state. This bioassay

level revision, therefore, should have no negative impact on aquatic life. (See related

comments on Section 073)

Comment 147: Revise reference in 173-303-040 to other fish species, delete reference

to other fish species in the third and fourth sentence because it is inconsistent with

biological testing methods manual.

Response: The reference to other fish species in the third sentence is in regard to book

designation. In order to minimize the amount of testing required of generators,

Ecology is clarifying that other species can be used for book designation if salrnonid

and fathead minnow are not available. Although the fourth sentence is consistent with

the current biological testing methods manual, the manual is undergoing revision and

certain portions of the method may be modified.

Comment 148: Support changes to bioassay if Ecology updates bioassay manual in

timely manner. Supports realignment of fish bioassay

Response: Support noted.

Comment 149: Do not support proposed changes to toxicity.

Response: Comment noted.

october 1995

51
Comment 150: Ecology should revise testing methods manual to address gill abrasion. (/

Response: Gill abrasion issues are generally associated with testing at higher

concentrations of waste in solution. With the adjustment of the fish bioassay testing

level to 100 mg/L, Ecology expects few gill abrasion issues with the fish bioassay.

WAC 173-303-100(5)(c)

Comment 151: One commenter strongly supports these changes as it greatly. simplifies

the approach in pursuing bioassay data to complete a waste designation.

Response: Support noted.

Comment 152: There is a typographical error in Section 1oo(5)(c)(ii).

Response: The language will be amended.

WAC 173-303-100(5)(d)

Comment 153: Ecology should revise this section to allow a generator to use either the

fish bioassay or the rat bioassay test to demonstrate that a waste is not a dangerous C~

waste when the waste has been designated as a dangerous waste using the book

designation procedure. This is inconsistent with the proposed bioassay procedure under

which the generator can use either bioassay test.

Response: The language will be amended-to allow a generator to select either test

procedure.

WAC 173-303-100(6) Persistence Criteria

Comments 154: Naphthalene biodegrades rapidly and is only of Category C toxicity,

therefore, naphthalene does not meet Ecology's definition of persistent waste in RCW

70.105.010(6) and should not be included in the polycyclic aromatic hydrocarbon

(PAH) summation.

Concerned that regulation of naphthalene will result in a large number of hazardous

waste cleanup sites with low risk.

Response: In the proposed Dangerous Waste Regulation amendments Ecology included

naphthalene as a specific polycyclic aromatic hydrocarbon (PAH~ to be summed toward

October 1995

52
•

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the EHW designation level of 1.0% PAH in a solid waste. Naphthalene was selected

as a constituent to be summed because it was a common constituent of coal tar pitch,

which is the most commonly encountered waste that is designated EHW because of

PAR content. In addition, referenced studies indicated that naphthalene was both toxic

and bioaccumulative in many situations. Naphthalene is not captured as a PAR in the

current rule.

For the final rule Ecology is deleting naphthalene from the list of PARs to be summed

toward the 1% PAR designation level because of new information submitted to

Ecology. There are several reasons for revising the proposal and excluding

naphthalene from the PAR summation. First, the naphthalene in coal tar pitch will

biodegrade rapidly under aerobic conditions. Second, experimentally derived

bioconcentration factors for naphthalene are significantly lower than other PAR

compounds and naphthalene does not present known carcinogenic risk to humans.

Third, the volume of naphthalene can be as high as 10% in many fuels. This could

impede energy recovery for a wide range of oily residuals such as tank bottoms, slurry

oils and off-specification fuels. Because the presence of naphthalene would result in a

PAR designation and an ERW label, these fuels currently burned for energy recovery

would then be subject to the more stringent requirements for burning dangerous waste

fuels. Burning for energy recovery is an appropriate way to dispose of the

naphthalene-containing fuels. Fourth, naphthalene is common in petroleum

contaminated soil. If very low levels of naphthalene caused soil from petroleum

. contaminated sites to designate as dangerous waste, it could hamper site cleanups by

imposing more requirements without providing additional environmental benefit. In

the absence of regulating naphthalene as a PAR, existing state criteria along with

EPA's ignitability and toxicity characteristics ensure protective management of fuel and

other PAR wastes;

Comment 155: Ecology's rationale for developing a list of PAR constituents that

includes less than four membered ring PARs does not hold up under scientific scrutiny.

The addition of these 2 and 3 membered ring PARs to the list of PARs to be analyzed

could impede cleanups of sites contaminated with petroleum.

Response: Ecology proposed to add several 2 and 3 membered rings to the list of

PARs to be summed for the PAR analysis so that the PAR test procedures could be

simplified by specifying the actual PAR compounds to be analyzed for, while

maintaining comparable stringency to the existing rule. In reviewing PAR

. contaminated waste data, Ecology concluded that summing the 16 priority pollutant

PARs results in a comparable designation level to the current PAR test method. It is

appropriate to regulate the 16 priority pollutants (except naphthalene, as previously

addressed) as part of the persistence criteria because they commonly occur in PAR

October 1995

53
· contaminated waste, persist in the environment, and contribute cumulatively to the

toxicity of the waste.

RCW 70.105.010(6) defines EHW as follows: Extremely hazardous waste means any

dangerous waste which (a) will persist in a hazardous form for several years or more at

a disposal site and which in its persistent form (i) presents a significant environmental .

hazard and may be concentrated by living organisms through a food chain or may affect

the genetic makeup of man or wildlife and, (ii) is highly toxic to man or wildlife; (b) if

disposed of at a disposal site in such quantities as would present an extreme hazard to

man or the environment.

Ecology's experience is that these individual PAHs are persistent as defined in RCW

70.105.010(6) in that all commonly occur in waste coal tar pitch, persist for several

years, and are individually as well as cumulatively highly toxie.

This conclusion is supported by the United States Toxics Substances and Disease

Registry. The registry information stated that thePAHs Ecology proposed to regulate

under the persistence criteria were 1) the most commonly occurring PAHs at Superfund

sites, 2) toxic, and 3) had the highest potential for human exposure.

Finally, Ecology's experience has been that the PAHs specified in the proposal

generally do not exceed 1% in soil concentration and will, therefore, not impede

cleanups of petroleum contaminated sites.

Comment 156: WAC 173-303-100(3)(b) refers to more than 3 and less than 7 ringed

PAHs. This should be deleted.

Response: Thereference to "greater than 3 and less than 7" has been deleted in the

final rule.

Comment 157: Support establishing a list of PAHs.

Response: .Support noted.

Comment 158: How does Ecology justify a PAH level at 1 percent?

Response: The PAH level of 1% was first established in 1980. The 1% level was

linked to a minimum amount for regulation of 100 pounds. Therefore, a minimum I

pound of PARs would be regulated as EHW. (l % of 100 pounds is 1 pound). The

one pound minimum for regulation originated with the equivalent toxicity concept for

category A and X toxic waste. This one pound was based on the smallest size of

commercial products available in containers. The 100 pound minimum amount for

October 1995

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• regulation has since been superseded by the EPA's concept of quantity exclusion limits

which initiate the threshold for regulation at 220 pounds.

Comment 159: We recommend that Ecology establish a PAH exclusion for aluminum

smelter PAH waste.

Response: Polycyclic aromatic hydrocarbons present a significant toxic and

bioaccumulative hazard. Ecology has no technical basis on which to exclude PAHs

generated at aluminum smelters from regulation as EHW. However, Chapter 173-303

WAC includes a petition process that might address these concerns.

Comment 160: Different brackets are used for benz(a)pyrene in WAC 173-303-040

and -1oo(6)(c).

Response: This has been edited for the final rule.

Comment 161: Add CAS numbers for all PAHs listed.

Response: The chemical abstract numbers for the PAHs specified in the rule are easily.

referenced and would not be useful to most people interpreting the Dangerous Waste

Regulations.

• Comment 162: PAHs should be allowed to be managed as special waste.

Response: Ecology believes management as fully regulated hazardous waste is the

most appropriate level of care for waste contaminated with significant quantities

(> 10,000 ppm or > 1%) of PAHs. Polycyclic aromatic hydrocarbons present a toxic

and bioaccumulative hazard to solid waste workers. In addition, PAHs are leading

constituents of concern discovered at cleanup sites.

Comment 163: Why hasn't Ecology adopted a dangerous waste level for PAHs?

Response: As noted in the preceding response, the 1% level for EHW PAHs was

developed to regulate the equivalent of a one pound quantity of PAHs. This is also the

starting point for regulation of toxic waste. Ecology has no reason to expand the rule

to include more PAHs as dangerous waste.

Comment 164: The PAH definition in 100(3)(b) should be deleted now that PAHs are

defined in WAC 173-303-'040.

•

Response: The definition ofPAH in WAC 173-303-1oo(3)(b) has been revised in the

final rule to be consistent with the definition in 173-303-040.

October 1995
Comment 165: List the specific persistence test method and verify there are

laboratories available to do this testing or else drop the requirement that halogenated

hydrocarbons be persistent per this test. If you assume that all halogenated

hydrocarbons are by their nature dangerous waste, then simplify the definition and

avoid using the term "persistence."

Response: The persistence test methods are referenced in the "Chemical Testing

Methods for Complying with the State of Washington Dangerous Waste Regulation"

revised May 1993 (referenced in WAC 173-303-110(3». The test methods for

halogenated hydrocarbons and polycyclic aromatic hydrocarbons are standard EPA test

methods. Ecology maintains a list of laboratories.

WAC 173-303-100(7) Carcinogenic Criteria

Comment 166: The law says regulate teratogens and carcinogens as dangerous waste,

but Ecology is not.

Wastes which do not designate under the revised fish bioassay may not be picked up at

low enough concentrations with the chlorinated hydrocarbon test.

We hereby petition the Department of Ecology to issue regulations as requested by state

law for the specific regulation of carcinogens, teratogens, and mutagens.

Response: Washington is the only state in the nation which has a dedicated dangerous

waste classification for halogenated hydrocarbons and polycyclic aromatic

hydrocarbons. Both of these classifications include a number of carcinogenic

chemicals. Additionally, Washington is one of only two states in the nation that

identifies dangerous waste with either a fish bioassay, or a rat bioassay at a 5,000

mg/kg level. Ecology Is analysis indicates that this battery of tests along with the

EPA I s lists and characteristics is the most effective and environmentally protective way

to identify wastes that contain carcinogens and teratogens.

Ecology proposed to eliminate the list of carcinogens regulated as dangerous waste

because the list is redundant with other waste classifications, and because several years

of annual report data shows that very little waste « 0.01 % of dangerous waste stream)

is being identified as dangerous based on the list. Ecology's experience with a list of

carcinogens is similar to that of Rhode Island, the only other state that has attempted to

regulate carcinogens through an extensive list. Although it sounds good in theory, it

does not work in application. There is virtually no additional environmental protection

provided by attempting to regulate carcinogens by a list.

October 1995

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Ecology will continue to regulate carcinogenic waste as dangerous waste through the

most effective means possible by using the measures of toxicity and persistence to

capture carcinogenic wastes that are not already identified through EPA lists and

characteristics.

In the Dangerous Waste Regulatory Reform Project report and the issues papers

associated with the report, Ecology documented an extensive review of approaches

available for regulating carcinogens and teratogens as dangerous waste. The conclusion

was that the most effective means available to regulate carcinogens are the oral rat and

fish bioassays and Ecology's current persistence classifications used in conjunction with

the lists and testing procedures of the EPA's RCRA program. These issue papers are

available upon request from Ecology and are a part of the rule making record.

Comment 167: Use of acute toxicity to regulate carcinogens as dangerous waste is

inadequate because it does not reflect the carcinogenicity of the waste.

Response: Researchers have noted that more potent carcinogens are often more toxic

as well, so in many cases a measure of acute toxicity is more reflective of the risk of a

carcinogen as compared with using an arbitrary level (e.g. 100 ppm) for all carcinogens

regardless of potency. Moreover, acute toxicity is not the only means that will be

employed for regulating carcinogens. The persistence classifications and the lists and

testing procedures of EPA's RCRA program will also be used to regulate carcinogens.

Comment 168: Many carcinogens are carcinogenic at concentrations below the level at

which they might be regulated.

Response: Carcinogenicity is commonly addressed in terms of risk. Risk is based on

the potency of the carcinogen and the exposure to it. The present level of 100 ppm for

the list of carcinogens is not based on the risk of any individual carcinogen on the list.

The 100 ppm level was selected 15 years ago so that the levels at which Ecology

regulates carcinogenic compounds, per WAC 173-303-100, is also the level at which

Category A toxicants are regulated.

Ecology's analysis indicates that the best way to regulate carcinogens as dangerous

waste is with a measure of acute toxicity along with a battery of other tests including a

halogenated hydrocarbon test, a polycyclic aromatic hydrocarbon test, and EPA

characteristic tests and lists. The analysis also indicates that by using this array of

tests, there is good coverage of the presently regulated list of carcinogens.

Comment 169: Not valid to say acute toxicity will identify carcinogens.

October 1995
Response: Acute toxicity will identify many carcinogens as evidenced by C

documentation of the list of carcinogens that Ecology currently regulates as dangerous

waste. Ecology's research indicates that a measure of acute toxicity used in

conjunction with a battery of other tests including a polycyclic aromatic hydrocarbon

(PAH) test, halogenated hydrocarbon test, and EPA tests and lists, is the most effective

means to regulate carcinogens currently available to Ecology.

Comment 170: With this proposal did Ecology consider at what concentration

carcinogens would be regulated?

Response: As noted in the Dangerous Waste Regulatory Reform Project report and the

preamble to the proposed rule amendment, Ecology did consider at what level the

carcinogen list would be regulated through other classifications. Category X toxic

carcinogens on the list would be regulated at 10 ppm, Category A toxic carcinogens at

100 ppm, Bat 1,000 ppm, Cat 10,000 ppm and D Category at 100,000 ppm (10%).

Carcinogens that are halogenated hydrocarbons would be regulated at 100 ppm and

carcinogens that are PAHs would be regulated at 10,000 ppm. Reviewing the presently

regulated list of carcinogens indicates 1% would be regulated at 10'ppm, 52% at 100

ppm,7% at 1,000 ppm, 22% at 10,000 ppm, and 18% at 100,000 ppm.

It is important to note that these regulatory levels are largely theoretical: almost no

waste is currently being regulated from the list of carcinogens. With the exception of C

metal filters contaminated with dioctyl phthalate (DOP) at Hanford and Whidbey Island

Naval Air Station, less than 5 tons of wastes have been regulated as carcinogenic

through the carcinogens list from 1989 to 1993. These years represent the years for

which Ecology has quality reviewed data. Again, with the exception of DOP, all of

those waste streams were already being regulated under other waste classifications.

The reason no wastes are being regulated under the list, is because the list is redundant

.with other state and federal dangerous waste classifications..In addition, there are no

accepted test methods for many of the listed carcinogens, so it is very difficult to assess

whether a listed carcinogen is present in waste streams.

Comment 171: Ecology reduced its list of carcinogens from 400 to approximately 100

with the last rule revision. This probably makes it easier to claim a short list of

carcinogens is subsumed under other classifications.

Response: Four of the 5 years of data Ecology reviewed were years when the

regulation referenced the International Agency for Research on Cancer (IARC) list of

approximately 400 constituents rather than the shorter IRIS/HEAST List. (U.S. EPA's

Integrated Risk Information System (IRIS)/Health Effects Assessment Summary Table

(HEAST». The few carcinogens that were reported as dangerous waste during those

years were on both lists. Therefore, for purposes of waste identification, it was

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immaterial which list was referenced. The important point to note is that identifying

wastes as dangerous per a list of carcinogens is not an implementable waste

management approach.

Comment 172: It is disturbing Ecology is not regulating dioctyl phthalate. It is

commonly occurring and is an endocrine disrupter and is widely used in vinyl products.

Phthalate has been found in groundwater at Thurston County landfill. .

Response: Dioctyl phthalate (DOP) is commonly used in products. In terms of

exposure, DOP is used as a plasticizer in polyvinyl chloride used in contact with food.

Migration of DOP from paper or plastic to food has been documented. Humans are

primarily exposed to DOP through drinking water, ambient air, fish and seafood, and

foods which come into contact with packaging material containing DOP. Humans also

receive significant exposures to DOP during blood transfusions due to migration from

the blood bag (National Library of Medicine Toxicological Data Network [TOXNET]).

In addition to inhalation and ingestion, a consumer is likely to be exposed through their

skin to phthalates used in nonplasticizer products, such as perfumes and cosmetics, and

plasticized products such as vinyl swimming pools and vinyl seats and clothing.

DO? should be managed in a protective manner. As noted in responses to comments

on WAC 173-303-073, MSW landfills have been developed to manage these

compounds in a manner that protects drinking water. Therefore, disposal of waste

containing this contaminant in a MSW landfill is an appropriate level of care. .

Thurston County officials report that DOP has been identified in groundwater samples

near the Thurston County landfill at concentrations in parts per billion. Levels detected

in groundwater samples are comparable to levels detected in the laboratory blanks used

in the water quality lab. The blanks are used to assess contamination from laboratory

procedures. Thurston County officials have noted that laboratory contamination is a

probable source of the DO?, and DOP could also be leaching out of the PVC pipes

which encase the monitoring. wells.

There is no indication that the Dangerous Waste Regulation changes will have any

effect on DOP Levels in groundwater at Thurston County or anywhere else in the state.

Comment 173: DOP filters are being regulated as dangerous waste at a high cost to

taxpayers. Ecology emphasis should be on bigger issues.

Response: Ecology is concerned about all potentially dangerous wastes. With these

rule amendments, efforts have been taken to make these rules as implementable and

cost effective as possible.

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Comment 174: The current definition of carcinogens keeps carcinogens out of landfills

and back alleys. There is no analysis of human health impacts with this proposal.

Response: The currently regulated list of carcinogens has virtually no effect on

keeping carcinogens out of landfills or back alleys. Very little waste has been

identified by this listing and that which has, is readily identifiable under other

classifications. Since the list has no effect on waste management practices, there is no

health impact from repealing the list. As noted in preceding responses, the one listed

carcinogen that would not be regulated as dangerous waste is DOP. On average, a few

tons a year of waste contaminated with DOP has been generated and reported in

Washington State over the past 3 years. The waste has been generated at Whidbey

Island Naval Station and Hanford.

Current municipal solid waste landfill design standards are based upon leachate from

landfills not exceeding risk-based levels at the point of compliance within the landfill

facility boundary. EPA noted that the landfill design goals were driven by carcinogens

. in solid waste leachate. With EPA's final rule, design standards Were established to

meet the risk-based goal of not exceeding drinking water maximum contaminant levels

(MCLs). EPA wenton to estimate that the new facility design along with siting,

operating, monitoring, and corrective action requirements will result in 0.01 cancer

cases per year nationwide over a 300 year period (56 FR 50985).

EPA I S municipal solid waste design standards are based on modelling and risk

assessment assuming that carcinogens (e.g., DOP) are present in refuse. The few tons

of waste generated with DOP contaminants per year will not contribute to increased

risk to public health because the MSW (Subtitle D) landfill requirements were

developed to manage wastes of this type in a protective manner. Survey information

indicates that no other state regulates DOP as a dangerous waste.

Comment 175: What is the number of fatal cancers for every lO,OOO persons exposed

to specific carcinogens at concentrations of 500 mg/kg oral rat.

Response: Estimates of cancer risk in humans are based on the potency of the

carcinogen and the extent of the exposure to the carcinogen. For example, Model

Toxic Control Act cleanup standards are derived from potency information for

individual carcinogens and default exposure estimates for contact with environmental

media at a contaminated site over an extended period. These exposure scenarios are

distinct from those characterizing solid or dangerous waste management situations.

Waste streams require segregated and managed care. Therefore, estimating cancer risk

associated with regulatory levels designed to differentiate between two different waste

management options (solid and dangerous waste) is not meaningful.

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Comment 176: This rule change will increase the level tenfold of carcinogens that end

up in the dumpster, back alleys, and landfills, carcinogens have impacts at much lower

levels.

Response: As noted in previous responses Ecology retained a battery of tests to

maintain a very protective Dangerous Waste Regulation including a protective fish

bioassay level of 100 mg/L and a rat bioassay level of 5000 rng/kg. Ecology

intentionally maintained protective bioassay levels to ensure regulation of carcinogens

and teratogens. Only waste with toxicity comparable to solid waste will be managed as

solid waste with this proposal. There is no indication that carcinogen levels will be

increased tenfold in dumpsters, back alleys, and landfills with this proposal. Ecology's

analysis indicates that greater than 80% of the waste affected by the rule change will be

cryolite waste from the aluminum industry. There is no evidence that this waste

contains carcinogens. Moreover; these relatively large volume industrial process

wastes are managed in roll-off boxes and waste piles, not dumpsters and back alleys.

Comment177: Delete reference to 7 in WAC 173-303-1 DO(4) since it will not exist

anymore.

Response: The reference is deleted in the final rule.

Comment 178: Delete reference to IARC monographs in WAC 173-303-100(2) to be

consistent with elimination of carcinogenicity criteria.

Response: The reference is deleted in the final rule.

Comment179: Support repealing the carcinogen list.

Response: Support noted.

Comment 180: Ecology should delete reference to carcinogens in loo(l)(c) since the

carcinogen list is repealed.

Response: WAC 173-303-100(1)(c) is repealed with final rule.

WAC 173-303-110

Sampling and Testing Methods

WAC 173-303-090(8)/110(4)/110(5)

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Comment 181: These sections need to be modified to be consistent with EPA guidance C

on when to use SW-846. Ecology only needs to approve an equivalent method when

the regulated community cannot use the analytical method required by regulation. EPA

indicated in 60 FR 3089 the fourteen instances where the regulations mandate use of a

specific SW-846 method. In section 045, Ecology is proposing that the regulations

reference CFR sections in effect as on July 1, 1995. In order to make the statement in

045, changes must be made to 090(8), 110(4); and 110(5) to reflect when Ecology

needs to approve an equivalent method. Some Ecology personnel believe that these

sections give Ecology the authority to approve all methods that are not exactly SW-846

methods which would make Ecology more stringent than the federal program.

Secondly, language in these sections indicates that Ecology can approve equivalent

methods without completing a rulemaking change process through the state register.

This would be less stringent than the federal rule at 40 CFR 260.21

Response: The EPA final rule "Hazardous Waste Management System; Testing and

Monitoring Activities" added new and revised methods to SW 846. WAC 110(4) is

being updated to incorporate the new and revised methods. The only actual rule change

based on this Federal Register is the update of SW 846. In 60 FR 3089, it states that

"Several of the hazardous waste regulations under subtitle C of RCRA require that

specific testing methods described in SW-846 be employed for certain applications.

Any reliable analytical method may be used to meet other requirements in 40 CFR

parts 260 through 270 ... the Agency lists below a number of the sections found in 40 O.

CFR parts 260 through 270 that require the use of a specific method for a particular

application, or the use of appropriate SW-846 methods in general .. ". It does not state

that the list is exclusive, but does go on to list a number of the sections that require the

use of a specific methods for a particular application, or the use of appropriate SW 846

methods in general. Ecology agrees with the language in the Federal Register that

states that in situations where an SW 846 is not required, SW 846 functions as a

guidance document setting forth acceptable, although not required, methods to be

implemented by the user, as appropriate in satisfying RCRA-related sampling and

analysis requirements.

The commenter also mentions the provision in WAC 173-303-110(5) which allows a

person to request the department to approve an equivalent testing method. The

commenter stated that it appeared that Ecology can approve equivalent methods without

completing a rulemaking change through the State Register. Section 110(5) directs the

requester to the petition process at 910(2) which states that a person may petition for a

regulatory amendment. The regulations would have to be amended to permit the use of

a new testing method when approval of an equivalent method is required. This makes

the state rule equivalent to the federal rule at 40 CFR 260.21. The reference to 110(5)

in WAC 173-303-090(8) is not meant to indicate that the department will approve an

alternative method without going through the petition for rulemaking process.. The

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provision at 110(4) describes the opportunity for public review that the department will

give when substantial changes are to be made to the testing methods. The commenter

stated that some Ecology personnel believe that these sections give Ecology the

authority to approve all methods that are not exactly SW...846 methods which would

make Ecology more stringent than the federal program. These provisions are not

meant to give Ecology the authority to approve all methods that are not exactly SW-846

methods, only where it is necessary. Finally, if the commenter has a specific situation

in mind, they are urged to contact Ecology and discuss the issue.

Comment 182: Ecology should clarify that when a specific SW 846 method is

mandated, minor simple variations are allowed without Ecology's approval.

Response: It would not be appropriate for Ecology to state that any variations are

allowed to the mandated test methods without knowing What, specifically, the

commenter has in mind. Ecology should be contacted sothat changes or variations in

the mandated test methods can be cleared before the test is conducted.

WAC 173-303..120

Recycled, Reclaimed, and Recovered Wastes

WAC 173-303-120(2)

Comment 183: The final reference to used oil in WAC 173-303-120(2)(a)(iii), states

that used oil that exhibits the characteristics or criteria of dangerous waste (and most

used oil would test as dangerous waste) and is being recycled in some manner other

than being burned for energy recovery or used in a manner constituting disposal is

exempt from the majority of the Dangerous Waste Regulations. Again, this implies

that used oil managed under WAC 173-354 but not recycled under WAC 173..303-120

would be subject to full regulation under WAC 173-303. Therefore, the language in

WAC 173-303-120(2)(a)(iii) should be omitted.

Response: With adoption of Chapter 173-354 WAC, Ecology will ensure that

authorities under Chapters 173-354 and 173-303 WAC do not conflict.

Comment 184: In 173-303-040, 173-303-120 (2)(viii), and 173-303-51O(I)(b)(i)(c),

replace reference of Chapter 173-354 WAC with 40 CFR 279, because Chapter 173-

354 WAC has not been proposed yet.

Response: Chapter 173-354 WAC has not been adopted yet, nor has Ecology adopted

40 CFR Part 279. For the present time, the citations will remain as they were prior to

proposal.

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Comment 185: We have been unable to locate Chapter 173-354 WAC in the state

register as referenced in the preamble.

Response: Chapter 173-354 WAC is now in the state register.

WAC 173-303-120(4)

Comment 186: Ecology needs to clarify the scope of the language at 120(4)(e), that

these requirements are not applicable to on-site recycling units that are operated on a

TSD facility under the generator provisions. EPA provided clarification in a RCRA

hotline question and answer "RCRA-261".

Response: Ecology agrees with the RCRA Hotline Response which states that if it is

"closed-loop recycling" and the materials reclaimed from the unit are excluded under

40 CFR 261.4(a)(8) [WAC 173-303-071(3)(q)], the air emission requirements would

not be applicable to on-site recycling units that are operated on a TSD facility. If the

recycling unit is not a hard-piped closed loop recycling unit, the air emission

requirements do apply.

Comment 187: Delete this subsection 120(4)(e) because it duplicates other sections. If

it adds requirements, please explain.

Response: This subsection was added for the purpose of requiring compliance with the

air emission standards for permitted facilities that recycle hazardous waste. Ecology

agrees that (e) is duplicative with the proposed line at 120(4)(d)(i)(D) and (d)(i)(D) will

be deleted from the proposal.

WAC 173-303-140(2)

Land Disposal Restrictions

Comment 188: The commenter requests clarification of authority for the "department"

where the term "Regional Administrator" in the EPA regulations has been defined to

mean the "department" with regard to Chapter 173-303 WAC. Which level within

Ecology is vested with the "official" decision making authority assigned to the

"department" .

Response: The addition of this sentence was for the purpose of consistency where

federal requirements are adopted by reference into the state rules. The addition was not

meant to affect where responsibility lies within the Department of Ecology for decision

making authority. The language was added so that when someone is reading federal

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rules, they will be reminded that Ecology, not EPA, has that authority. Decision

making authority varies from field or headquarter staff level to section or program

manager level to the"Department of Ecology Director depending on the issue. If the

commenter has a particular issue in mind, they are encouraged to contact Ecology for

clarification.

WAC 173-303-160

Containers

Comment 189: Clarify if 173-303-160 is intended to refer to a problem associated with

emptying containers using hand pumps instead of submersible pumps.

Response: The revisions to WAC 173-303-160 are intended to aid solvent recyclers in

emptying containers via use of a submersible pump.

Comment 190: The preamble for 173-303-160 states that this rule revision will allow

solvent recyclers to transport empty containers without a manifest. How does this

benefit solvent recyclers.

Response: Shipping procedures are simplified if a recycler does not have to manage

their empty barrels as dangerous waste. A manifest would not be required and the

transportation requirements of WAC 173-303-240 through 270 would not be required

for transporting empty barrels.

Comments 191: 160(2)(b) triple rinsing of EHW: Delete reference to "toxic EHW."

Ecology has not provided a basis to extend triple rinsing requirements to containers

holding toxic EHW as proposed. In addition, Ecology should delete this requirement

because EHW does not appear on an EPA list which is a requirement for AHW, in 40

CFR 261.11(a)(2).

In 160(2)(b) please explain the addition of the line "toxic EHW as defined in 173-303-

100.

Response: With this rule change, Ecology has revised the regulatory threshold of

EHW to be consistent with the EPA I S regulatory threshold of AHW. This common

threshold for toxic waste is now defined by an oral rat LDso of SO mg/kg. Since both

types of waste have this common hazard level, it is logical to have similar management

standards for these wastes where practical.

Comment 192: Supports changes to section 160(2). In order to be consistent with the

40 CFR 261.7, Ecology should delete the 10% requirement in 160(2)(b). Ecology

october 1995

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would be helping generators minimize the waste generated through triple rinsing by

eliminating this requirement, since it is not required by 40 CFR 261.7.

Response: Ecology agrees that there are situations where 10% rinsate volume is not

necessary. The language will be modified to allow the generator to determine the

appropriate amount of rinsate. Application of the requirernent that 10% of a container

volume is used for each of 3 rinsings results in the generation of at least 33 gallons of

waste rinsate from decontaminating a 110 gallon barrel. If 10% is not necessary for

proper decontamination, use of excess rinsate is inconsistent with prudent pollution

prevention principles. The triple rinsing approach is a reasonable decontamination

standard. A generator may use their judgment regarding the quantities of rinsate to be

used for each rinse.

Comment 193:· Ecology should clarify the amount of hazardous waste that would

remain in emptied containers annually.

Response: The definition of an empty container is found in WAC 173-303-160.

Ecology has no estimate of the amount of hazardous waste remaining in empty

containers annually.

Comment 194: Fully support adjusting the definition of empty containers and acute

hazardous waste.

Response: Support noted.

WAC 173-303-161

Overpacked Containers (labpacks)

Comment 195: The reference to 665(10) should be changed to 140(4)(b)(iv) since this

is where the list of non-biodegradable sorbents are listed.

Response: The citation is changed in the final rule.

Comment 196: The language needs to be changed to allow biodegradable and nonbiodegradable sorbent use in this section because this section is not specific to disposal

and also includes the storage and treatment of labpacks. Non-biodegradable sorbents

are only required when disposing of a labpack which is covered by 161(7).

Response: The state section title is "Overpacked containers (labpacks)" whereas the

federal analog is titled "Disposal of small containers of hazardous waste in overpacked

drums (lab packs)". The state section applies to situations other than disposal;

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therefore, the rule language will be changed to clarify that nonbiodegradable sorbents

are only required when disposing of a labpack in a landfill.

Comment 197: Ecology might consider the merits of allowing a biodegradable sorbent

that does not react with the labpack contents. Labpacks are often incinerated and the

nonbiodegradable sorbent material this section requires for labpacks is generally of a

.mineral nature with a high ash content which adds to the total ash volume after

incineration Requiring high ash sorbents for labpacks would seem to counter Ecology's

goals of dangerous waste reduction.

Response: The proposed language is being changed so that nonbiodegradable sorbents

are only required when the labpack is to be disposed of in a landfill (see the previous

comment). A biodegradable sorbent that does not react with the labpack contents

would be allowed for labpacks that are to be incinerated.

WAC 173-303-170(3) (b) .

Requirements for Generators or Dangerous Waste

Comment 198: Replace the requirerrients with the language "applicable sections of

WAC 173-303-200, 201, and 202." Section 200 already captures containment building

requirements in 200(1)(b)(iv) and the reference to tanks is confusing .

Response: Ecology agrees that the suggested change will result in a sentence that reads

more clearly without changing the meaning. The suggested change will be made.

WAC 173-303-200

Accumulating Dangerous Waste On-site

WAC 173-303-200(1)(b)(i)

Comment 199: The proposal is unduly broad in requiring all new container

accumulation areas to comply with the secondary containment requirements of WAC

173-303-630(7). The federal rules do not require secondary containment for either

generator accumulation or interim status units.

Response: The proposed change to this subsection was to move the existing

requirement from 200(l)(b)(ii) to (l)(b)(i) to accommodate the adoption of drip pads

and containment buildings. The requirement itself is not new and was not proposed for

change.

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WAC 173-303-200(1)(b)(iv)

Comment 200: Ecology needs to delete the phrase "incorporated by reference in WAC

173-303-400(3)(a)" . It is inappropriate to reference the reader to the interim status

standards in 'section 400 because of the way Chapter 173~303 WAC is structured for

requirements pertaining to generator tanks and containers.

Response: It is important that federal requirements are incorporated by reference.

Rather than referring the reader to section 400, the sentence will be changed to read

"which are incorporated by reference ift WAC 173 303 400(3)(8;)".

Comment 201: Since the effective date of February 18, 1993 has passed, it seems

appropriate not to discuss the relevance of that date and just indicate that the

professional engineers certification must be obtained prior to operation of the unit.

Response: The issue of dates is often somewhat confusing because of the fact that the

State is at least several months behind changes in the federal rules. Over time,

however, it has been easier for comparisons between the two sets of rules when the

state includes the federal dates. For the sake of consistency, the date will be retained.

Comment 202: .The commenter supports the incorporation of the "containment

building" requirements as applicable in sections 040, 200, and 695.

Response: Support noted.

WAC 173-303-282(6)(C)(O

Siting Criteria

Comment 203: The words "or dangerous waste management unit" should be deleted

because this section covers siting criteria for dangerous waste management facilities,

not dangerous waste management units. If this requirement is determined to be

necessary it should be placed in a different section where it will be noticed.

Response: The phrase "or dangerous waste management unit" was added for

clarification. The definition of "facility" does not specifically state that a "dangerous

waste management unit" is interchangeable with the term "facility". This addition is

important because a dangerous waste management unit may not be located within the

one hundred year flood plain and if a person were to refer to the definition of

"facility", that person might incorrectly infer that this section does not apply to a

dangerous waste management unit.

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WAC 173-303-300(6)

General Waste Analysis

Comment 204: In regard to checking for biodegradable sorbents, this section may be

interpreted incorrectly as written. If the word "improperly" is added, it will clarify

that the landfill needs to ensure they are only accepting non-biodegradable sorbents.

Response: Ecology appreciates the commentersI interest in making the requirement

read more clearly. The commenters' intentions are understood; however, if the word

"improperly" were added, it is possible that someone reading this requirement could

infer that there is a "proper" way to add a biodegradable sorbent when, in fact, it

means that a biodegradable sorbent may not be added at all.

WAC 173-303-335

Construction Quality Assurance Program

Comment 205: Recommend that Ecology simplify this requirement, while still

meeting the intent of the law because the section is very complex and restrictive.

Response: Ecology appreciates the commenter's interest in simplifying complex

regulations. This section is analogous to the federal provision, and while it is desirable

to have the rules read more simply, comparisons for equivalence between Ecology rules

and EPA rules become more complex when Ecology changes the federal language that

it incorporates. Also, in regard to content, Ecology cannot be less restrictive, or less

stringent, than the federal requirement. If the commenter has a specific concern about

this requirement, they are encouraged to contact Ecology.

WAC 173-303-380(1)

Facility Recordkeeping

.Comment 206: The commenter supports the inclusion of these requirements which

will help in identifying operating record requirements that are consistent with 40 CFR

264.73·and 265.73.

Response: Support noted.

WAC 173-303-400

Interim Status Facility Standards

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Comment 207: To simplify the way that 40 CFR 265 subparts are referenced and to

include all of the relevant regulations, change the language to read: "...40 CFR C

Subparts F through DD... ". This will provide for,consistency between the proposed

changes to sections 045 and 200 (l)(b)(iv)\ to these three sections. Making this change

will also provide for the inclusion of containment buildings (which is proposed in 200)

and recently promulgated air emission standards for tanks, surface impoundments, and

containers. Including subpart CC will also allow Ecology to drop the confusing

language in 640(5)(e)., '

Response: Ecology has not yet proposed Subpart CC for adoption, so it will not be

included in the interim status requirements. However, Subpart DD was proposed for

adoption and the citation in 400(3) will be corrected to include Subpart DD. Ecology

is continually in the process of updating the Dangerous Waste Regulations by

incorporating federal requirements and is usually somewhat behind the federal

hazardous waste rules. Some of the federal requirements are incorporated by

reference, and others are written into the rules. The provision in 045 applies where

rules have been incorporated by reference. If the state has not yet adopted a federal

provision that is a Hazardous and Solid Waste Amendment (HSWA) requirement, then '

that federal rule is implemented in th~state by the EPA. Amendments based on 1984

HSWA requirements are implemented in authorized states by EPA until states (such as

Washington) adopt them. Amendments that are based on pre-HSWA requirements

must be adopted by authorized states before they go into effect. EPA only implements

the pre-HSWA requirements in states that are 'not authorized for the base RCRA C

program.

Comment 208: The purpose of proposed rule WAC 173-303-400(4) is unclear, since it

seems to be somewhat redundant to WAC 173-303-400(3)(a)(i), which cross references

sections which incorporate 40 CFR Part 268 standards by reference. Additional

explanation regarding the intent of this new proposed section would be appreciated.

Response: Ecology agrees that this requirement is somewhat redundant with the

existing 400(3)(a)(i). The addition at 400(4) was proposed as a conforming change for

adopting land disposal restriction requirements and was deemed necessary by EPA

staff.

WAC 173-303-515

Used Oil Burned for Energy Recovery

Comment 209: The Dangerous Waste Rule Amendments dated June 1995 do not

contain a Section 515 (Special requirements for used oil burned for energy recovery).

One would then assume that Section 515 was deleted because the Department of

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Ecology is proposing that Section 515 be replaced by Chapter 173..:354 WAC (Used Oil

Management Standards). The problem with Chapter 173-354 is that it does not follow

the legislative mandate specified by Senate Bill 1010. This is because 173-354 is more.

restrictive than the federal used oil requirements of 40 CFR 279. In addition, Chapter

173-354 does not comply with the intent or the requirements of RCW 70.951, the used

oil recycling act. To correct these problems, the commenter recommends that the

Department of Ecology should adopt 40 CFR 279 with modifications.

Response: The reason Section 515 did not appear as part of the proposal is that no

changes were proposed to it. However, when Ecology proposed Used Oil Management

Standards Chapter 173-354 WAC, that proposal included repealing WAC 173-303-515.

Section 515 may be established in the Used Oil

Management Standards and repealed from the Dangerous Waste Regulations when the

used oil rules are adopted, although a final decision has not yet been made. Ecology is

presently considering comments on the used oil rules and will respond to comments

when the final used oil rule is published.

WAC 173-303-620(8)

Financial Requirements

Comment 210: The commenter appreciates the Department's efforts to obtain closer

consistency with EPA regulatory practices by incorporating by reference 40 CFR

260.147, allowing the use of additional instruments besides the financial test to be used

for liability coverage. This realignment will decrease the cost of compliance for the

regulated community.

Response: Comment noted.

WAC 173-303-630

Use and Management of Containers

Comment 211: Ecology should establish additional criteria to constrain this

requirement and promote consistent application throughout the state. Without any

means of knowing what criteria WDOE will employ, it is not possible to adequately

plan or design facilities. One commenter supports the belief that the current regulatory

requirements to provide a covered storage area for all EHW are overly stringent and

also concurs that covered storage may be appropriate for storage of DW materials in

certain situations. However, the language in the proposed rule amendment allows for

too much discretionary authority on the part of individual Ecology inspectors to require

protective covering ..

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Response: Ecology recognizes that providing covered storage for a large number of . (j

containers is an expensive undertaking. The language allows discretion; but it clearly

indicates that the purpose of protective covering is to prevent the release of waste based

on the nature of the waste or the design of the container. Under foreseeable

circumstances, well managed and maintained steel or polyethylene drums would not

need protective covering. Fiber drums or "super sacks" may need covering depending

on site specific conditions such as duration of storage, climate, and waste type. This

requirement allows facilities the greatest flexibility to address the issues of maintaining

legible labels and container integrity. Ecology will be providing training to Ecology

staff and the regulated community on the changes in the regulations.

WAC 173-303-640

Tank Systems

Comment 212: A note accompanying the text at 640(4)(c)(iv) refers to 'collected

material' but does not specify with precision what the' collected material' covers. A

definition or minor Clarification in the note is suggested.

Response: Ecology agrees that a constituent of a waste may be acutely or chronically

toxic by inhalation, yet not pose that risk in the waste because of the physical form of

the waste. Ecology has been looking at this issue, but is not yet ready to propose a rule

amendment. Ecology believes that the air toxics rule may provide an approach to this

problem.

WAC 173-303-650 Surface 1m oundments

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WAC 173-303-660 Waste Piles

WAC 173-303-665 LandrIlls

Comment 214: These sections regarding Action Leakage Rates are fine if they are

analogous to federal provisions. If federal rules retain an inspection for liquids and do

not 'approveI an action leakage rate, then the proposed rules would be less stringent

than the federal analogous rules.

Response: These sections were amended to be analogous to the federal provisions. In

section 650, the deletion of the requirement in regard to "an inspection for liquids" was

done to conform with the deletion of subsection (3), entitled Double lined surface

impoundments; exemption from WAC 173-303-645, ground water protection

requirements. This provision had been removed from the federal rules several years

ago. The addition at 650(4)(d), Monitoring and inspection, addresses, the newer leak

detection requirements. In regard to approval of an action leakage rate, the federal

rules state that "The Regional Administrator shall approve an action leakage rate... "

which makes the state rules analogous where they state "The department must approve

an action leakage rate" . '

Comment 215: With the additions being proposed in 650 and 660, the commenter is

questioning the need for the 5-year limit and other management requirements identified

in 395(5) to surface impoundment-and waste piles. With the technical standards for

surface impoundments and waste piles being proposed, it seems that human health and

the environment would be protected if waste had to be stored beyond a 5-year period.

Response: The purpose of the five year time limit is to encourage waste recycling and

treatment by not allowing wastes to.remain in waste piles and surface impoundments

for longer periods of time. The additions in 650 and 660 do not duplicate the

requirements of 395(5). The management requirements contained in section 395(5)

will be retained.

WAC 173-303-700(1)

Extremely Hazardous Waste Facility at Hanford

Comment 216: One commenter notes that this section does not apply to EHW

containing radioactive components that may be disposed of at the U.S. Department of

Energy Is Hanford facility.

Response: Ecology agrees with the commenter. This section was established for the

nonradioactive EHW disposal site that the State was to develop on land obtained within

the boundaries of the Hanford reservation. That site has not been developed.

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WAC 173-303-800(7)

Permit Requirements for Dangerous Waste Management Facilities

Comment 217: The commenter supports inclusion ofthis important exemption from

obtaining a permit during immediate response activities. The commenter believes that

this is not the appropriate place to include this exemption based on the structure of 400

and 600.· The commenter would like to see the exemption appear in 400(2)(c) as a new

SUbsection, and replace the language found in 600(3)(h). The language found in

600(3)(h) seems to be the same exclusion, but worded in a fashion that creates

confusion about applicability.

Response: The federal analog to 800(7)(c) is 40 CFR 270.I(c)(3). While wording of

the state and federal rules are not identical, each of these citations appears in the section

for permitting requirements which makes 800(7) the appropriate place for this

exemption. The federal analog to 600(3)(h) is 40 CFR 264.I(g)(8). Both of these

citations are in sections related to TSD requirements. Ecology will retain the proposed

exemption in the permitting requirements section. As far as the exemption found in

600(3)(h), Ecology agrees that is should also be in 400(2)(c). The language will be

added at 400(2)(c)(x) which is analogous to 40 CFR 265.2(c)(II).

WAC 173-303-806(4)(a)(xxiv)(A)

Final Facility Permits

Comment 218: The commenter supports the proposed change which would require that

an application provide information regarding known "significant" releases. This

change should simplify the application process and be sufficient to identify any releases

for which corrective action would be potentially appropriate.

Response: Support noted.

WAC 173-303-830 Appendix 1

Permit Changes

General Facility Standards (B)(l)(c)

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Comment 219: To be consistent with the LDRs, underlying hazardous constituents

apply when waste codes DOOl, DOO2, or any of the D012-D043 waste codes are

assigned to the original waste (40 CFR 268.9(a)). Modify this language to include all

applicable waste codes based on 60 FR 242.

Response: The RCRA Hotline was consulted to determine whether or not a

corresponding change should have been made to this permit modification requirement

based on the land disposal requirement at 40 CFR 268.9(a). No such change was

necessary and the state language will remain identical to the federal language. If the

federal language is subsequently changed, the state will amend the requirement.

Landfills and Unenclosed Waste Piles (J)(8)(c)

Comment 220: "Other changes" was given a Class II modification for no identified

reason. No other Classes (lor III) in other sections of 830 identify "other" as an

activity. Please clarify this.

Response: The proposal is identical to the federal hazardous waste regulations 40 CFR

270.42 Appendix I, under J. Landfills and Unenclosed Waste Piles. Changes in

response action plan (8c) "other" was given a Class 2. If the commenter is asking why

"Class 2" was assigned to the category "Other changes", the state cannot be any less

stringent than the federal requirement. If the comrnenter is asking why the category

"Other changes" was included as a modification, the change originated in the January

29, 1992 Federal Register. The Federal Register does not specifically state why the

category "Other changes" was included, however, if the commenter needs to complete

a permit modification in this area, they are encouraged to work with Ecology to

determine what would be appropriate for their submittal.

WAC 173-303-960

Special Powers and Authorities

Comment 221: Clarify that WAC 173-303-960 applies to all generators "regardless of

quantity or concentration."

Response: Ecology believes that an amendment to WAC 173-303-960 is not necessary

because the existing language clearly indicates that it applies to all generators,

regardless of quantity or concentration.

WAC 173-303-9903

Discarded Chemical Products List

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Comment 222: The commenter supports the modification made to this section. The

result will be a list of U and P wastes that mirrors the EPA list, and is divided up like

EPA has done in 40 CFR 261.

Response: Support noted.

WAC 173-303-9904

Dangerous Waste Sources List

F-Listed Solvents

Comment 223: A few commenters expressed support for adoption of EPA I S Ten

Percent Solvent rule.

Response: Support noted.

Comment 224: In Section "FOOS" Ecology should change the reference from "F005"

to "F004".

Response: The language is amended in the final rule.

Comment 225: Ecology should clarify the 10% requirement for mixtures of FOOl,

F002, F004, and F005 listed constituents. For example, if you have 5 % Methylene

Chloride (FOOl) and 5 % Cresylic Acid (F004), is the result a FOOl and F004 waste, a

FOOl, F002, F004, and F005 waste, or a waste which is not an F listed waste ~t all?

Response: Ecology is not sure what the com menter ,s example represents. It is not

clear whether it is a waste mixture containing two waste solvents: 5 % FOOl (Methylene

Chloride) and 5 % F004 (Cresylic Acid), or it is a product mixture containing 5 %

Methylene Chloride and 5 % Cresylic Acid. The ten percent rule refers to the total

amount of solvents in the product before use. Waste resulting from a "5 % Methylene

Chloride" product used for degreasing (FOOl) would not meet the 10% rule and not be

an F listed waste at all. Likewise, for a waste that was a 5% Cresylic Acid product

that was used as a solvent and became spent.

If the commenter's example indicates a product mixture of 5 %.Methylene Chloride and

5% Cresylic Acid, then it meets the 10% rule. If the product is used in degreasing

. then it meets the definition of FOOl for Methylene Chloride and since it also contains

Cresylic Acid the waste code F004 needs to be included. If the product mixture is used

as a solvent and spent, then it is F002 for Methylene Chloride. Since it also contains

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Cresylic Acid, the waste code F004 needs to be included. The waste codes are used to

identify the constituents in the waste, so only the codes that identify the constituents by

name in the listing are applied to the waste. Finally, if the commenter's example

indicates a mixture of two listed wastes, FOOl and F004, then the mixture (regardless

of the concentration of either listed waste) is a listed waste and carries the waste codes

of the listed wastes. In this case, FOOl and F004.

WOOl

Comment 226: Delete the requirement to add additional PCB waste code. It does not

appear to add any benefit to management of wastes.

Response: Ecology has clear direction from the legislature in RCW 70.105.105 to

regulate PCBs as dangerous waste that are generated from electrical equipment

salvaging operations, and that are not regulated by the Toxic Substances Control Act.

Comment 227: One cornmenter recommends that Ecology modify the listing identified

as WOOl on page 371 of the Draft Regulations by specifying that it applies to those

items listed "that have been sold or otherwise transferred." This would address those

sites and activities that were the focus of the state legislation without adding an

additional burden on an unintended portion of the regulated community.

As an alternative, it is recommended that Ecology substitute the language in the WAC

for the language proposed as follows:

"...wastes generated from the salvaging, rebuilding, or discarding of

transformers or capacitors that have been sold or otherwise transferred

for salvage or disposal after the completion or termination oftheir useful

lives and which contain polychlorinated biphenyls (PCBs) and whose

disposal is not regulated under 40 CFR pan 761. Nothing in this section

shall prohibit such wastes from being incinerated or disposed of at

facilities permitted to manage PCB wastes under 40 CFR part 761.

(1987 C488 § 2.)"

Response: The existing language in the rule specifies ... transformers and capacitors

which will no longer be used for their intended use. . . . Ecology believes that this

language will create less confusion than the commenter's language. The commenter's

language states: ... transformers and capacitors that have been sold or otherwise

transferred. . . . Ecology believes there are many ways to interpret "sold or otherwise

transferred" and the rule is clearer with the existing language. The references to 40

CFR part 761 are included in the exclusions of WAC 173-303-071(3)(k).

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Comment 228: Ecology's regulatory reform goals do not support increased state

regulation of PCBs or of used oils. Current Washington State law does not require or

authorize additional expensive regulation of PCBs. The Washington Legislature

focused on specific environmental problems from off-site management when it enacted

dangerous waste laws for PCBs. The Washington State legislature did not intend to

regulate electric utilities.

Response: Ecology has not increased regulation of PCBs or used oil with this rule

change. The major aspects of this rule change that affect PCB management include:

1) deleting the state-only rinsing requirement for PCB electrical equipment, and

deferring to federal decontamination procedure, 2) making the PCB listing level

consistent with the federal regulatory threshold, and 3) allowing in-state disposal

options for materials contaminated with PCBs (WOOl listed) through a conditional

exclusion for special wastes. All of these constitute a simplification of the PCB rule,'

not an expansion.

The statutory reference in RCW 70.105.105 for managing PCBs does not specify that

salvaging, rebuilding, and discarding has to occur off-site before the activity is

regulated. Ecology believes that the legislature intended to regulate salvaging,

rebuilding, and discarding of transformers, capacitors, or bushings whether the

salvaging is conducted off-site in a salvage yard or on-site at a utility.

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Comment 229: The most recent addition of bushings to the state regulatory listing does 0

not appear to be within the scope of the enabling RCW.

Response: In 1991, Ecology expanded the listed electrical equipment to include

bushings because bushings are attached to transformers and function as apart of

transformers. Ecology added bushings to the electrical equipment list of WAC 173-

303-9904 to clarify the listing. Ecology's experience at equipment salvage yards has

been that bushings were a major source of PCBs that could ultimately contaminate the

site. Ecology believes including bushings in the listing is within the intent of RCW

70.105.105 which is to prevent contamination from the salvage of electrical equipment.

Comment 230: Regulating PCB oil below 50 ppm concentration that is regulated under

TSCA is not supported by current statute.

Response: RCW 70.105.105 specifies that Ecology, under Chapter 70.105 RCW,

regulate PCBs whose disposal is not regulated under 40 CPR part 761. The EPA in 40

CPR part 761 regulates the burning of used oil with less than 50 ppm PCBs in

concentration. The regulatory authority for disposal of this low level PCB oil is

ambiguous in the EPA rule. EPA representatives have not been able to clarify disposal

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authorities or associated enforcement provisions. Ecology believes RCW 70.105.105

provides the clear authority for regulating this low level PCB oil.

Comment 231: The commenter supports the modification to the WOOl listing. This

definition will be much easier for the regulated community to implement.

Response: Support noted.

Comment 232: Ecology needs to develop a treatment standard for WOOl listed waste

because this listed waste follows the waste into the landfill when disposed.

Response: Ecology's annual report information indicates that very little of WOOl listed

waste ends up in landfills.: Rather, contaminated electrical equipment is salvaged and

contaminated oil is burned for energy recovery. No treatment standard is needed for

the small quantities of WOOl listed waste that could be landfilled because they can be

safely land disposed if the conditions of the special waste exclusion in WAC 173-303-

·073 are met.

Comment 233: Need to address that Ecology is dropping full regulation of certain

PCBs.

Response: PCB contaminated waste that meets the revised definition of special waste

in WAC 173-303-040, can be conditionally excluded from the Dangerous Waste

Regulations if the requirements of WAC 173-303-073 are met. The regulatory

requirements for special waste are found in WAC 173-303-073.

Comment 234: We recommend that cooling and insulating fluids be deleted from the

listings as disposal is regulated under the federal PCB rules at 40 CPR 761.20(e).

Ecology should adopt the federal used oil regulations. This would simplify the

requirements and reduce confusion while at the same time provide adequate protection

to human health and the environment.

Response: 40 CFR 761.20(e) addresses burning, recordkeeping, and marketing of

PCBs in concentration of 2 ppm or greater in oil. Disposal of PCBs, or enforcement of

disposal activities is not specifically addressed. Similarly, 40 CFR 761.20(d) prohibits

the use of PCB contaminated oil as a dust suppressant. Both subsection d and e of 40

CFR 761.20(e) have been pointed to as regulation of disposal for PCB contaminated

oil. However, 40 CFR 761.20(e) and (d) are ambiguous on this subject. EPA

representatives have not been able to clarify the disposal for Ecology staff.

Ecology is presently considering comments to the used oil nile and will respond to

those comments with the publication of the used oil rule.

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WAC 173-303-9907

Persistent Dangerous Waste Mixtures Graph

Comment 235: Ecology should delete the persistence graph in WAC 173-303-9907

. and rely on the language in WAC 173-303-100.

Response: As noted in Section 100, the language in Section 100 can be used to

designate persistent waste on the graph in WAC 173-303-9907. Ecology has elected to

retain the persistent graph because some people prefer a graphical representation to help

them identify their waste as solid, dangerous, or EHW ..

Hanford Issues

Comment 236: Seventy-one tons of toxic and carcinogenic waste generated at Hanford

could go unregulated because of Ecology's proposed rule change.

Response: The 71 ton figure is the estimated amount of state-only dangerous waste

generated at Hanford and reported to Ecology in 1993. None of this waste will go

unregulated with this proposal. All but 12 tons of this waste will continue to be

regulated as it presently is as mixed or dangerous waste. As discussed below, 7 tons

could be managed as low level waste and 5 tons could be managed as solid waste.

In regard to the mixed waste stream, 7 tons of high efficiency particulate air filters

(HEPA filters) contaminated with less than 1% by weight dioctyl phthalate (DOP)

which presently designate as mixed waste, appear to designate as low level waste under

this proposal (this is for one year, based on 1993 data). If that was the case, the waste

would be managed as low level waste on-site at Hanford. As low level waste, the

waste would be containerized and disposed in a trench at the Hanford Low Level Burial

Grounds (LLBG). The low level trenches are subject to groundwater monitoring and

closure capping requirements.

In regard to the dangerous waste stream, approximately 5 tons of DOP contaminated

light ballasts are likely to be managed as municipal solid waste off the Hanford site.

As discussed in responses to comments on deletion of the carcinogen list in WAC 173-

303-100, DOP contaminated wastes are appropriately disposed in solid waste facilities

(see comments and responses to Section's 100(7) and 073).

The 1993 annual report data also include one half ton of Category D toxic waste

consisting mainly of sodium and magnesium chloride and calcium fluoride that could be

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subject to regulation as a low-level waste instead of a mixed waste with the adjustment

to the fish bioassay. If the generator chose to conduct a fish bioassay to identify the

hazard of this waste and the waste did not fail the fish bioassay at the proposed level of

100 mg/L, the waste would be appropriately managed as solid waste. Refer to

comments and discussion on Sections 100 and 073 for disposal of wastes of this hazard

in solid waste facilities.

Additionally, trace levels of beryllium and nickel have been generated at Hanford that

could be affected by this proposal. These waste streams are likely toxic enough to

continue to be regulated under the toxicity classification of the Dangerous Waste

Regulations.

Ecology reviewed Hanford waste generation records from 1991 and 1992 in addition to

1993. Results of this analysis show that 1993 data are representative of other years.

As indicated above, on a yearly basis there are a few tons of contaminated HEPA

filters and trace quantities of other state waste that could be affected by the rule

changes.

Comments 237: Ecology did not know that there is no regulation of Hanford's

radioactive waste burial grounds. The Department of Energy's radioactive waste burial

grounds do not come close to regulatory standards.

Response: The Department of Energy's low level burial ground trenches (LLBG) are

regulated under the Atomic Energy Act (AEA) by the Department of Energy as well as

under the Resource Conservation and Recovery Act (RCRA) interim status regulations.

The AEA is implemented through Department of Energy orders and is enforced by the

Department of Energy. The RCRA interim status permits are administered by Ecology

and the EPA. The interim status permit requires groundwater monitoring and has

closure requirements that include capping the units which contain the trenches.

The LLBGs include trenches for low level radioactive wastes which are unlined and

trenches for mixed waste that meet, at a minimum, RCRA hazardous waste landfill

requirements. The low-level trenches are unlined because the primary performance

criteria are based on the potential for radionuclides to reach groundwater before they

have decayed to levels which will not affect human health and the environment. Liners

are installed for the mixed waste trenches, however, because the hazardous

(nonradioactive) component will not necessarily diminish over time. Therefore, liners

are installed to contain the waste. Ecology and the EPA maintain a battery of tests and

lists to determine the hazard of a waste. This ensures that mixed waste will continue to

be managed in these lined trenches.

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Disposal of free liquids in low level burial grounds is not allowed in accordance with

the 1987 low level burial ground permit application. The generator must sign off on 0

the fact that free liquids are not present in waste. As of 1987, containerized liquids can

no longer be stored in the trenches either. Since liquid wastes are no longer allowed to

be stored or disposed of in the burial grounds, it is unlikely that present practices will

lead to future groundwater contamination (see response to comments on groundwater

contamination).

Comments 238: Department of Energy and Westinghouse Hanford are self-regulating

for burial of radioactive waste.

The Department of Energy regulations are orders not regulations. These orders do not

have the force of law and do not even approach the standards for acommercial low

level nuclear waste burial site established by the Nuclear Regulatory Commission

(NRC) nor do they even approach the standards for a hazardous waste 'landfill or a solid

. waste landfill. They are unlined and unmonitored trenches. I

Response: Orders are used by the Department of Energy to manage contractors.

These orders represent a binding contract with the contractor and are enforceable by the

Department of Energy.

Management of low level waste at the Hanford burial ground trenches in accordance

with Department of Energy orders, is comparable to management of low level waste at 0

the U.S. Ecology site at Hanford which is regulated by the Nuclear Regulatory

Commission through the Washington State Department of Health. In both cases low

level wastes are containerized and buried in unlined repositories. Both the LLBG

trenches and the U.S. Ecology site have groundwater monitoring and will have caps

installed as part of closure. As noted in preceding responses, depth to groundwater, and

radioactive decay rate are more critical for low level waste than solid and hazardous

waste. That is why no liner is required by the Department of Energy orders or

requirements of the NRC.

Comment 239: The Department of Energy allows burial of waste in plywood boxes

and without numerous protections required at a commercial low level nuclear waste

burial site.

Response: Low level radioactive wastes are buried in plywood boxes in the low level

burial ground trenches at Hanford. As discussed in the preceding response, these

trenches have the protective requirements as required by the Atomic Energy Act and in

addition they are part of a RCRA disposal unit subject to the closure requirements of

capping and groundwater monitoring. These disposal requirements are comparable to

the protections required at a commercial low level nuclear waste burial site.

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Comments 240: Disposal of toxics and carcinogens in unregulated trenches poses

higher risks of reactions and groundwater contamination.· Disposal of "state-only"

wastes in Hanford's unlined trenches may greatly increase the spread of radionuclides

in the burial trenches.

Ecology should not assert it is ok to compound the contaminated groundwater problems

at Hanford by adding toxic and carcinogenic wastes, including solvents, mobilizers,

and reactive chemicals to what are already known to be failed trenches.

Even the non-dangerous waste burial grounds and control landfill at Hanford have

contributed to groundwater contamination at levels requiring cleanup. Radioactive

waste burial grounds to which Ecology proposes to allow toxic wastes to be added are

contributors to the nation's most massive groundwater contamination problem.

The cumulative and synergistic effects from adding dangerous waste to burial trenches

must be examined. This will cost us a great deal of money to cleanup.

Response: After reviewing the last 3 years of available annual report data (1991, 1992,

1993) for the Hanford site, Ecology has concluded that the proposed rule amendments

will have very little effect on waste management practices in the low level burial

grounds (LLBGs) at Hanford. One waste stream generated at Hanford that will

probably be affected by this proposal is HEPA filters with less than 1 percent

concentration of DOP, a probable human carcinogen. Seven tons of these filters were

generated in 1993 (the last year of record).

This proposal would affect burial ground disposal practices in that these wastes with

DOl" contamination would now be classified as low level waste instead of mixed waste.

They would, therefore, be disposed of in unlined trenches at the burial grounds rather

than lined trenches. Ecology believes these filters can be safely and protectively

. managed in low level waste trenches because in addition to being a small waste stream,

they are in solid form, containerized, and ultimately buried in a waste management unit

that will be capped during closure. Moreover, as noted in responses to comments in

Section 100(7), information from TOXNET documents that the filter contaminant

(DOP) is insoluble in water and rapidly absorbed to soil and degraded. Additionally,

the waste management unit site is particularly protective because of depth to

groundwater and low rainfall and infiltration. nop contaminated filters are the only

waste stream Ecology has identified that will probably have different management

practices applied in the low level trenches because of the proposal. The Department of

Energy reports that nop use in these filters is being phased out at Hanford beginning

in 1996.

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There is no indication that the changes made to the Dangerous Waste Regulation will

have any affect on waste management practices on site at Hanford other than disposal

of filters. Therefore, other toxics, solvents, mobilizers or carcinogens being disposed

in the low level trenches at Hanford are not expected to be affected by this proposal.

Revisions to the rule were made to improve its effectiveness while continuing to

regulate toxics, solvents mobilizers and carcinogens as dangerous wastes.

The following information addresses groundwater contamination at the LLBG:

Contamination at the LLBG has occurred at three of the low level waste management

areas (LLWMAs). Data indicates that this contamination stems from previous

discharges at upgradient facilities (outside of the LLBG). There is no data that suggests

that the present practices at the LLBG have contributed to this contamination. A

summary of the groundwater contamination at the 5 LLWMAs in the LLBG is as

follows:

LLWMA-l: Nitrate and tritium plumes in excess of drinking water standards (DWSs)

are the major contaminants in the LLWMA-l area with sources to the southeast. Gross

alpha and gross beta in excess of drinking water standards (DWSs) have also been

detected at this facility. The source is inferred to be the 216-B-62 Crib located east of

the site, approximately 400 meters upgradient (outside of the LLBG).

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LLWMA-2: No contaminant indicator parameters have been detected in excess of their

critical means for this area. 0

LLWMA-3: Elevated total organic halogens are present because of a carbon

tetrachloride plume. The source of the carbon tetrachloride is historic disposal in cribs

and trenches associated with the plutonium finishing plant (outside of the LLBG).

Nitrate and trichloroethane have also exceeded DWSs at this site. Sources for these

constituents are also discharge facilities located upgradient of this area.

LLWMA-4: Carbon tetrachloride, tritium, and nitrate plumes are present beneath this

area and exceed DWSs. The source of the carbon tetrachloride is the upgradient

plutonium finishing plant. The tritium and nitrate are also from upgradient sources.

LLWMA-5: Carbon tetrachloride, tritium, and nitrate are present in the groundwater in

concentrations above DWSs. These constituents are associated with plumes in the 200

West area which were caused by upgradient liquid disposal facilities.

In summary, a review of the hydrostratigraphy, infiltration rates, waste stream

descriptions, current and future disposal practices and groundwater monitoring history

indicates the following:

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1) The groundwater monitoring history in the LLBGs area indicates that the present

groundwater contamination in the Central Plateau of the Hanford Site is a function of

the past practices (both intentional and unintentional) of discharging to the soil column

through trenches and cribs large volumes of process wastewater associated with the

various plant facilities on the Central Plateau. The monitoring programs directly

associated with the various LLWMAs indicate that the LLBG has not impacted

groundwater.

2) Based on the present waste practices at the LLBG, i.e, the limited liquid disposal,

the non-leaching nature of the waste, the waste packaging procedures, and coupling this

with the infiltration rates of the soil in the LLBG, there is not a likely potential for the

formation of leachate. Therefore. there is no likely impact to the groundwater from

present practices at the LLBG. The proposed rule changes will affectdisposal practices

of small quantities of DOP contaminated filters at the LLBG. There is no likely impact

to groundwater from these final rule changes.

References on the extent and sources of contamination at the LLBG are available from

Ecology.

Comment 241: Washington has no idea of the total quantity of "mixed wastes" that are

. currently in the universe of state only mixed waste which may be shipped to Hanford

with the proposed changes to the regulations ..

Response: Ecology has carefully tailored the proposed regulation amendments to

maintain environmental safeguards. This proposal will have very little effect on waste

importation issues. Importation of RCRA mixed waste to Hanford is governed by the

Federal Facilities Compliance Act (FFCA). There is no identifiable effect of the

dangerous' waste rule amendments on importation of RCRA mixed waste. Ecology

opposes any importation of mixed waste to Hanford outside of the FFCA process and

has gone on record as recently as August 1995, in this regard (letter from J. Breckel,

WDOE to J. Lytle, U.S. DOE, RE: Shipment of mixed waste to Hanford prior to

October dated 8/10/95.)

There is significant disposal capacity for low level waste at Department of Energy sites

around the country. There is no expected pressure for importation oflow level waste

to Hanford for disposal. If conditions change in the future Ecology has maintained

safeguards to ensure that mixed waste will continue to be regulated as mixed waste in

the state.

The only waste importation issue Ecology has identified is potential increased

importation of commercial low level waste to the U.S. Ecology site from the 11

western states that participate in the Northwest Compact (the Northwest Compact was

October 1995
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created under the auspices of the Low Level Waste Policy Act). Specifically, HEPA

filters contaminated with DOP could be imported to this site. Ecology has identified 0

the likely sources of HEPA filters that the U.S. Ecology site could receive. These

potential sources are Department of Defense installations, Department of Energy sites,

and commercial nuclear reactors. Department of Energy sites around the country have

their own low level disposal facilities so Ecology does not expect importation of HEPA

filters from these sites. U.S. Ecology receives low level waste from two defense

installations that have the potential to generate HEPA filters, Puget Sound Naval

Shipyard (PSNS) and Pearl Harbor Naval Shipyard. PSNS representatives report that

at this time.the shipyard is planning to incinerate the HEPA filters they generate instead

of burying them as low level waste. Representatives of the Pearl Harbor Naval

Shipyard report that approximately five cubic meters of DOP contaminated HEPA

filters a year will be exported to the U.S. Ecology Site.

Another potential source of contaminated HEPA filters is the three commercial nuclear

reactors that send low level waste to U.S. Ecology. WWPPS #2 at Hanford, Portland

General Electric in Oregon, and a Public Service of Colorado plant. The Oregon plant

no longer tests with DOP; therefore, there is no potential source of contamination on

the filters. WWPPS #2 site generates about a 55 gallon drum of filters per year for

disposal at the U.S. Ecology Site. Representatives of the Colorado site report they will

continue to incinerate their contaminated HEPA filters.

In summary, Ecology surveys indicate there are few sources of HEPA filters that could 0

potentially be imported to the U.S. Ecology site. Moreover, the few remaining HEPA

filters that may be imported, as noted in previous responses, pose no probable

environmental threat when placed in low level trenches compared to the current

practice of disposal as mixed waste. This is because the wastes are in solid form,

containerized, and ultimately buried in a managed unit that will be capped during

closure. In addition, as explained in the responses to comments of Section 100 (7), the

. DOP contaminate is insoluble and decomposes rapidly in the environment and the U.S.

Ecology site location is protective because of depth to groundwater, low rainfall and

low percolation rates.

Comment 242: Under the rule changes as admitted in Ecology's letter of 1994 large

quantities of waste that are currently mixed wastes would likely be brought to Hanford

for unregulated burial in unlined trenches (as low level waste).

Response: Ecology was not able to determine what letter of 1994 was being referred to

by the commenter. .Ecology does not believe there is a letter that states that large

quantities of waste are expected to be imported with this proposal. If the statement was

made, it was made in error.

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Comment 243: Department of Energy and Westinghouse Hanford are planning to

import large quantities of mixed toxic and radioactive waste for burial at Hanford

including solvents ranging from the carcinogen carbon tetrachloride to immense

quantities of radioactive contaminated ethylene glycol, and these chemical pose

synergistically increased risk. If Washington reduces its definition of carcinogenic and

toxic waste, the imported waste would be unregulated and buried with far less

environmental safeguards than if regulated as dangerous.

Response: As noted in previous responses, there is no indication that the regulation

changes will have any affect on mixed waste importation to the Hanford site. In

addition, with the possible exception of HEPA filters contaminated with DOP, there is

no indication that importation of low level waste will be affected by this rule change.

Ecology has no information that suggests there will be increased importation of solvents

with carbon tetrachloride or radioactive antifreeze. Moreover, carbon tetrachloride is

an EPA listed solvent and, as such, would besubject to regulation as a dangerous waste

under this proposal. Furthermore, liquids are expressly banned from disposal in the

Hanford low level trenches and the U.S. Ecology site. This rule change does not affect

management or importation of these wastes. These rule changes were carefully

selected to improve the implementablity of the regulations and to ensure environmental

protection.

Comment 244: An Ecology Division is on record regarding Hanford's inadequate

funding of groundwater monitoring and future burial ground operation and monitoring.

Response: As noted in previous responses Ecology does not expect any part of this

proposal to contribute to groundwater contamination.

Comment 245: Decontamination, decommissioning and RCRA/CERCLA closure

wastes from Hanford facilities and units would end up disposed in unregulated and

unlined trenches.

Response: RCRA and state-only waste generated from decontamination,

decommissioning, and Closure will have to be treated and disposed at permitted

treatment, storage, and disposal facilities. Solid waste (not dangerous, radioactive, or

mixed) could be disposed of off-site in a solid waste facility. Mixed waste and low

level waste would have to be managed per their respective standards. It is important to

note that the only identified effect of the Dangerous Waste Regulation amendments at

Hanford is that DOP contaminated filters could be managed as solid waste or low-level

waste. This has no effect on how decontamination and decommissioning wastes will be

managed.

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Comment 246: It is irresponsible to propose these rule changes based on what waste

stream information is reported to Ecology. Ecology is well aware that these reports do

not include the vast majority of processing plants at Hanford which have claimed to be

exempt from dangerous waste regulation and RCRA and have not fallen under the Tri

Party Agreement.

Response: All solid waste generated at the Hanford site must be designated as

dangerous or nondangerous. Ecology maintains a compliance investigation presence at

the Hanford site. Ecology's experience has been that the annual report data is

representative of the wastes generated and managed at Hanford. Ecology does not

believe there are waste streams other than the waste streams identified in the preceding

responses that will be impacted by this proposal.

As part of the Facility Transition discussions between the Department of Energy and

Ecology/EPA there may well be additional facilities and/or their associated wastes

streams which will become subject to the Dangerous Waste Regulations. These waste

streams are similar to other currently regulated waste streams at Hanford. Ecology

does not expect that this regulation change will have any impact on the future

regulation of Hanford facilities and waste streams.

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Comments 247: Can Ecology address why Ecology entered into a formal agreement

with the Department of Energy that said this rule would give specific consideration to

mixed waste at Hanford and explain how Ecology has given specific consideration to C

mixed waste with this proposal.

On May 4, 1995, the Department of Ecology entered into a formal agreement with the

Department of Energy to adopt this rule change by November 1. This agreement

prejudiced Ecology's decision to do an EIS because the threshold determination was

issued two weeks later. Has Ecology prepared an EIS in this time frame before?

Response: In early May, Ecology representatives attended a meeting in St. Louis,

Missouri, with EPA, Department of Energy, and the Department of Energy's

contractors, Westinghouse-Hanford Company' and Bechtel. The purpose of the meeting

was to look for ways to increase efficiency, effectiveness, and speed of cleanup efforts

at the Hanford site. In exploring options for streamlining regulatory processes,

Ecology projected finishing amendments to the Dangerous Waste Regulations by

November 1995. This statement reflected the most current operating schedule for the

project at the time. At the time of this meeting, Ecology had done sufficient work

analyzing the expected impacts of the proposal to make an initial determination that a

determination of non-significance would be issued (i.e., that an Environmental Impact

Statement would not be required). The formal determination of non-significance was

issued by Ecology approximately two weeks after this meeting occurred. This meeting

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had no bearing on the analysis of expected impacts. Ecology reviewed expected

impacts and determined that issuing a draft DNS was appropriate for these proposed

changes. An EIS would have been conducted if, as part of this review, Ecology had

determined that an EIS was required or the proposal would have been modified to

eliminate the need for an EIS. If an EIS had been necessary, any schedule commitment

would have been modified.

Regarding the question of Ecology giving "special consideration" to mixed waste,

although the document referenced refers to giving special consideration to mixed waste,

this statement was intended to relay the objective of the Dangerous Waste Regulatory

Reform project. The Dangerous Waste Regulatory Reform project was designed to

carefully evaluate all state-only waste regulations per the goals of the project. The

statement, as written, inappropriately conveys the meaning that this consideration was·

given to mixed waste only when, in fact, it was given to all state-only wastes.

Regulatory Reform Issues

Comment 248: The rule amendments do not meet the regulatory reform objectives

established by the department. When the project was initiated Ecology stated that the

burden of proof was on 'Ecology to demonstrate the benefit of whatever rules were not

repealed. Ecology has not met its self imposed goals.

Response: The regulatory reform proposal objectives were as follows: 1) Simplify the

regulation, 2) Review opportunities for pollution prevention, 3) Tailor management

standards to the risk of the waste, 4) Reduce overlap between regulations, and 5)

Update science. Throughout the regulatory reform process, Ecology emphasized

examining how the state's waste criteria were implemented and explaining how the

state rule differed from the federal hazardous waste requirements. Ecology conducted a

systematic analysis of waste streams that were regulated solely by Washington State

dangerous waste criteria and not by EPA lists or characteristics. Ecology concluded

that many waste streams that present significant hazard are regulated by state criteria

and not federal lists and characteristics. The EPA listing process results in gaps in the

wastes listed; also, there are severe limitations on how lists are applied.

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Based on this analysis, Ecology significantly simplified, tailored, and updated the

dangerous waste criteria. Ecology's best estimates are that as a result of the proposed

changes, 25% of the state-only waste stream, composed of wastes of the lowest hazard,

can be managed as solid waste because of the fish bioassay level revisions. Streamlined

and efficient "performance standard" based management rather than the prescriptive

federal management standards were developed for 50% of the state-only dangerous

waste stream. The remaining 25 % of the state-only dangerous waste stream, which is

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the most hazardous waste and is as hazardous as virtually any waste managed by the

EPA, will remain subject to all of the management standards of the EPA's hazardous 0

waste regulations. In addition, Ecology modified or updated several significant waste

management standards that were providing little or no environmental benefit or were

actually impeding protective management of dangerous waste. For example, Ecology

changed its regulations of F-listed solvents in concentrations less than 10%, and

modified the limitations on accumulation of waste for small quantity generators. These

changes also align the state rules more closely with federal requirements, thereby

reducing complexity and confusion.

Ecology's economic analysis indicated that these changes will result in significant cost

savings to businesses in the state. Moreover, environmental protection provided by the

Dangerous Waste Regulations will not be reduced or compromised. Ecology believes

that the proposed revisions are significant, broadsweeping, and have met the intent of

the Regulatory Reform Project goals. The revised Dangerous Waste Regulations 'are

both protective of human health and the environment, and practical and cost effective.

Comment 249: Ecology has not justified a need for additional state regulations to

manage dangerous waste.

Response: As noted in the preceding response, Ecology conducted a systematic and

thorough analysis of waste streams regulated solely by the Washington State dangerous

waste criteria and not by the EPA lists or characteristics. Ecology documented large 0

numbers of dangerous waste streams not regulated by the EPA. This is not surprising j

given the criticism the EPA has received from General Accounting Office studies.

These studies indicate that potentially many hazardous waste streams are not being

regulated by the EPA. EPA has neither identified what percentage of the hazardous

waste universe it regulates nor whether its regulations are comprehensive enough to

ensure environmental protection.

Ecology documented that without the state criteria, significant quantities of waste of

comparable hazard to waste regulated under the federal hazardous waste program

would not be managed with an adequate standard of care. Examples include:

wastewater with copper, nickel, and zinc contaminants; phenolic based machine cooling

fluid; sand blast grit with benzene; and a variety of EPA listed wastes that are mixed or

not discarded in pure form so that they are not covered by EPA's hazardous waste

regulations.

Comment 250: If Ecology was interested in championing this proposed rule

amendment as a "regulatory reform" project, then it should be reviewed against ESHB

1010. To what extent has Ecology considered 1010 concepts and principles?

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Response: Ecology initiated the Regulatory Reform Project in the fall of 1993 and

enlisted the aid of an advisory committee from the fall of 1993 to winter 1994. There

was an extensive investment of time put into the project by the advisory committee

members. Ecology acknowledged this investment of time and assured members that

Ecology would deliver a rule amendment, ona time line consistent with that

represented throughout the advisory committee process. That time line consisted of

Phase I with recommendations developed during the period of Fall, 1993 to Fall of

1994 and Phase II with rule development during the period of Fall, 1994 to Fall, 1995.

ESHB 1010 was initiated in the legislature in January of 1995 and became law on

July 23, 1995. By this time, all of the recommendations from the dangerous waste

regulatory reform process for this rule were already established. Draft rules had been

developed and reviewed by interested parties, and the rule had already been proposed.

The intent and goals of ESHB 1010 have been met through this regulatory reform

proposal. The proposed rule is simpler, more implementable and cost effective. It is

also more like the federal requirements. Regulations developed in this manner meet the

goals of ESHB 1010.

Comment 251: Section 103 of ESHB 1010 imposes limitations on Ecology's ability to

adopt rules after July 23, 1995. The limitation is that the statutory authority for

adopting the rules cannot be "based solely on a section of law stating a statute's intent

or purpose, on the enabling provisions of the statute establishing the agency [Ecology],

or on any combination of such provisions... " This new provision will apply to changes

in the dangerous waste regulations should they be adopted after July 23, 1995.

One issue is how this provision can also be applied to existing rules that are in effect

readopted after July 23, 1995. For example, WAC 173-303-100 would be amended

only in part under the proposal with most of the regulation remaining unchanged. Does

the grant of authority provision apply only to the changed portions in that regulation or

to the entire regulation? We believe that the new grant of authority of provision applies

to the entire regulation.

Even if not literally applicable to a particular regulation due to the effective date in

Section 103 of ESHB 1010, the grant of authority concept should be applied to each

dangerous waste regulation section. Conceptually, Ecology should not be able to

justify a regulation requirement solely on a statement of intent or purpose in a statute.

The agency should be able to identify other statutory provisions authorizing the

rulemaking.

October 1995
What grant of authority issues are raised by Ecology's dangerous waste proposal? A

partial list includes the following:

Does Ecology have clear legislative authority for designating and regulating state-only

dangerous wastes, such as Category C and Category D toxic waste or solid corrosives?

RCW 70.105.020 authorizes Ecology to adopt regulations for the designation of

"extremely hazardous waste," but does not provide for the designation and regulation

of "dangerous waste." This comment was included in AWBI S comments dated

December 21, 1994. Ecology's response to it (see, Responsiveness Summary, page 7)

was that RCW 70.105.005 gave Ecology authority to regulate dangerous waste.

However, RCW 70.105.005 is a statement of intent or purpose that cannot be relied

upon by Ecology as a result of Section 103 of ESHB 1010.

Response: The limitations on rule development in ESHB 1010 do not apply because of .

the date of the proposed rule.

Comment 252: Does Ecology have the authority to adopt regulations which reject

federal RCRA exclusions? RCW 70.105.130 and .145 authorize Ecology to implement

the RCRA program. This statutory language is silent on whether Ecology can pick and

choose among the federal RCRA exclusions. What then is Ecology's authority for

rejecting several of the federal RCRA exclusions, including solid corrosives and several

other waste streams that are not EHW?

Response: Under Chapter 70.105 RCW, established to regulate dangerous and

extremely hazardous waste, Ecology has the authority to adopt dangerous waste

regulations that do not include federal exclusions. In adopting an exclusion of the

federal rules, Ecology would also be excluding wastes from the state criteria

regulations. Because of these state criteria there is a need for the state to evaluate

federal exclusions before they are adopted.

Comment 253: Does Ecology have legislative authority to regulate halogenated

hydrocarbons as dangerous waste? This repeats in a more specific way the question of

whether Ecology has legislative authority to designate and regulate state-only dangerous

waste. With respect to Ecology's basis for its authority to regulate halogenated

hydrocarbons, note that at page 13 of the Responsiveness Summary, Ecology pointed to

the definition of dangerous waste in RCW 70.105.010(5). They did not explain how

the properties of halogenated hydrocarbons fit the definition of dangerous waste.

Again, where is the agency's clear statement of regulatory authority?

Response: Ecology has the authority to regulate halogens under RCW 70.105.007(1)

because halogen waste meets the definition of dangerous waste in RCW

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70.105.010(5)(a): have short-lived toxic properties that may cause death, injury or

illness or have mutagenic, teratogenic, or carcinogenic properties.

Comment 254: Section 201 of the new law may apply to the proposed changes to the

dangerous waste regulations even though the proposal was filed prior to July 23, 1995,

the effective date of Section 201. Regardless of any potential applicability issue,

because Ecology has chosen to champion this rule amendment as a regulatory reform

project, the Agency should at least attempt to address the amendment in the spirit of

ESHB 1010. The following concepts in Section 201 should be applied to this

regulatory proposal.

Do the probable benefits to the rule exceed its probable costs? Section 201(c) of ESHB

1010 requires an, agency to make this determination before adopting new regulations.

There are many aspects of the current regulations that have never been subjected to

such benefits/cost comparison.

Have alternatives to the rulemaking been analyzed and is the least burdensome

alternative being adopted? Section 201(b) requires an agency to analyze alternatives to

a rulemaking and the consequences of not adopting a rule. Section 201(d) requires the

agency to determine that the rule being adopted is the least burdensome alternative

among the alternative versions that will meet the statutory requirements.

Is there justification for having a state rule that differs from a federal regulation that

applies to the same activity or subject matter? Section 201(g) requires an 'agency to

justify differences from federal regulation.

Has Ecology coordinated the proposal, to the maximum extent practicable, with other

federal, state, and local laws that apply to the same activity or subject matter? Section

20l(h) requires such coordination so as to avoid regulatory duplication.

Following adoption of a rule, has the agency met coordination obligations imposed

under the new law? Section 201(4) requires an agency to coordinate implementation

and enforcement of a new rule with other federal and state agencies that regulate the

same activity or subject matter.

Response: The limitations on rule development in ESHB 1010 do not apply because of

the date of the proposed rule.

However, Ecology believes that this rule meets the intent of Section 201 ESHB 1010.

First, benefits versus costs of several proposed alternatives were considered before

alternatives were selected. For example, benefits and costs of various alternatives for

handling and disposing of special wastes were analyzed. Also, cost savings were

October 1995

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researched in selecting the new accumulation standard. Secondcin regard to selecting

the least burdensome alternatives, Ecology considered several alternatives ~ot each 0

proposed rule change. The primary guiding criteria for selection was what is the.

simplest and mosteffective way to achieve a particular end while still "being ..

environmentally protective. Third, clear justification for having a rule that differs from

a federal rule has been demonstrated since there were many significantly toxic {and

persistent waste streams that were not regulated by the federal program. FQurtp,.r :

Ecology coordinated the proposal to the maximum extent.practical with other ~.

regulations. Reducing overlap was a cornerstone of this-entire.regulatory reform

process. Fifth, coordination of implementation and enforcement of the rule as . '

suggested in Section 201(4) is ongoing and will continue to be emphasized \\;'itl1 public

outreach in 1996. ,.... ...;'. -. -·'-.f

Environmental Impact Statement (EIS) Concerns

Comment 255: Ecology needs to do an environmental impact statement with this rule

amendment.

Response: Ecology staff have carefully developed these proposed amendments so that

no waste that is presently regulated as dangerous will be allowed to be released to the

environment or will have a greater risk of creating a probable adverse impact on the

environment. Ecology has tailored the amount of care that wastes are given with the

risk of the waste. As a result, during the SEPA checklist development Ecology did not

identify any aspects of this proposal that would result in a probable adverse

environmental impact.

Comment 256: You have failed to meet your obligation under the State Environmental

Policy Act to consider those potential significant environmental impacts including the

very clear impacts recognized by the legislature not long ago in dealing with MTCA,

that will occur if counties are required to take what is now dangerous waste in their

landfills.

Response: As noted in preceding comments Ecology has fulfilled SEP1\ obligations

with this proposal. Ecology interprets this question to mean that the Model Toxics

Control Act was developed to clean up contaminated sites, and there is a concern that

this proposal will create contaminated sites by allowing special wastes-to go to landfills.

As noted in responses to comments on Section 073, this proposal will not create

cleanup sites because the landfills that are allowed to accept special waste were

designed to manage these wastes in a protective manner. By preventing releases to the

groundwater, these sites will not become cleanup sites. Moreover, Ecology's analysis

indicates that due to the minimal volume of special waste and the low level of toxicity

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present in special waste, the waste managed in municipal solid waste landfills with this

proposal will not cause sites to exceed MTCA cleanup levels. In addition, Ecology's

proposal does not require counties to accept special wastes in their landfills. Local

governments can establish their own screening requirements for special waste.

Comment 257: Even with the proposed changes to the dangerous waste regulations,

the dangerous waste rule is still too complicated.

Response: The Dangerous Waste Regulations are complex and technical. Certain

aspects of dangerous waste management, such as dangerous waste designation, are

inherently technical and complicated. Ecology has attempted to make the regulations as

understandable as possible. To supplement the regulations, Ecology also communicates

regulatory information by developing industry-specific guidance. Ecology will

continue to search for ways to make the regulations and supporting informational

materials more user-friendly.

Comment 258: Public participation for this rule process was minimal and insufficient.

Response: With this regulation amendment process, Ecology conducted the most

extensive public review of the Dangerous Waste Regulations since the rules were first

developed in 1978. As part of the rule development process Ecology worked closely

with a broad based advisory committee, used focus sheet mail outs, ·newsletters, and a

draft rule to solicit public comment prior to filing the proposed rule. During the

formal review of the proposed rule numerous public hearings and public meetings were

held. Ecology has met and exceeded the requirements of the Administrative Procedure

Act, in involving the public in this rule development process.

Comment 259: The commenter requested clarification of the finality of the

Determination of Nonsignificance (DNS), and stated that notice of preparation of the

DNS was not included in the May 26, 1995 mailing to the advisory committee nor was

reference to the DNS included in the State Register Proposal of June 7, 1995.

Response: This comment Was addressed by a separate letter dated July 17, 1995. A

copy of Ecology's response letter is included in this Responsiveness Summary and

follows the final comment and response.

Comment 260: Many people submitted a post card to Ecology requesting that Ecology

do an Environmental Impact Statement. They also stated that Ecology must regulate

carcinogens and chemicals that cause mutations or birth defects.

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Response: A letter explaining the proposal was sent to everyone who submitted a 0

postcard. A copy of 1 that letter follows these comments and responses. Ecology also

received several letters similar to the post cards. Please see the letter which follows

comment/response number 276. Related comments and responses are in the sections on

Special Waste (073), Toxicity (100(5», and the Carcinogenic Criteria (100(7».

Miscellaneous Comments

40 CFR 264 Subpart CC- Air Emission Standards

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Comment 261: Add a new section to account for the final status regulations in 40 CFR

264 Subpart CC, "Air Emissions standards for tanks, surface impoundments, and

containers." These regulations were recently promulgated by EPA and Ecology could

meet its regulatory reformgoals better by adopting this subpart-as well.

Response: Ecology has not yet proposed Subpart CC for adoption, but will consider it

during the next rulemaking.

Universal Waste Rule 40 CFR Part 273

Comment 262:' Recommend adoption of universal waste concept. . .

Response: The Universal Waste Rule became effective on May 11, 1995 which was

too late to be considered for thisrulemaking. It will be considered for adoption during

the next rulemaking.

Federal Rule Interpretations

Comment 263: The commenter requests confirmation that Ecology's interpretation of

the federal requirements that were proposed for adoption will conform to that

established by the EPA.

Response: When Ecology adopts federal rules, staff look first to federal interpretations

as guidance. Ecology's interpretation of the federal requirements will conform to EPA

interpretations as much as possible.

Gender Issues

Comment 264: Words such as "he" or "him" should be replaced with "they" or

"them" throughout the regulations so that the regulations are gender-neutral.

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Response: As sections are changed within the regulations, Ecology will continue to

strive for gender neutrality.

Public Law Citations

Comment 265: Change V.S. Public Law citations to V.S. Code citations. Most

people find that V. S. Public Law citations are difficult to use, as most libraries contain

the V. S. Code, not compilations of public laws. V .S. Code citations are the official

citations for federal law.

Response: Ecology appreciates the commenters interest in improving the citations.

Ecology strives for consistency with the federal Resource Conservation and Recovery

Act (RCRA) rules when incorporating federal requirements including the citations..

The citations in the State rules correspond to the federal rules.

Focus Sheet

Comment 266: The commenter stated that the Focus sheet that Ecology mailed to the

public announcing the hearings was an exclusive pitch to generators and indicated that

other members of the public are interested in the proposed changes to the regulations,

particularly potential impacts at Hanford .

Response: Ecology appreciates the fact that sectors of the public other than dangerous

waste generators are interested in changes to the Dangerous Waste Regulations. A

mailing list is maintained by Ecology of people who are interested in changes to the

Dangerous Waste Regulations. The list includes many people who are not generators.

The focus sheet was mailed to everyone on this list. The statement on the focus sheet

that referred to generators was not intended to exclude people who are not generators, .

it was only meant to catch the attention of the reader. In addition, the focus sheet was

not the only method used by Ecology to notify the public of the proposed revisions and

public hearings. Ecology publishes a quarterly newsletter called "Shoptalk" with a

distribution of over 25,000 people. An article appeared in each of the last two issues

regarding the proposed changes. Ecology also publishes a public involvement calendar

every month. Two issues included notices of the public hearings on the proposed rules.

Finally, a news release was prepared and a number of additional individuals and

organizations were contacted by phone in order to contact others who would be

interested in the changes.

Public Records File

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Comment 267: The commenter requested that all correspondence, especially between

public interest groups and Ecology, and local governments and Ecology, be included in

the formal record of this rule, and for the determination of nonsignificance. The

commenter also requested that all meeting notes and correspondence involving meetings

between Ecology's staff and public interest groups represented on the Dangerous Waste

Advisory Committee be in the record, and that all correspondence, informal notes,

meeting notes, and other correspondence or public records of any form involving

communication between or from the Association of Washington Business and the

Westinghouse Hanford Company in regard to this rule, be in the record.

Response: A public records file is required for each agency rulemaking. The

documents that are required to be placed in the public records file will be placed there,

plus some additional background information. One file will be maintained with the

Hazardous Waste and Toxics Reduction Program and one in Ecology's records section.

The commenter also made a separate public records request to which Ecology

responded by providing all of the requested documentation.

General Praise/Support

Comment 268: The commenter supports the proposed changes that bring the

Dangerous Waste Regulations in line with federal language such as adjusting the

definition of an acute hazardous waste and an empty container, changing the

organization of the Discarded Chemical Products list in 9903, and adopting the EPA's

Ten Percent Solvent Rule.

Response: Support noted.

Comment 269: One commenter commended Ecology for conducting a thorough, open

process during the two years leading up to the proposed amendments. The proposed

rules would significantly improve the existing rules, in that they would better promote

management of wastes commensurate with risk. The changes, if enacted, would

improve several existing provisions which are extremely difficult to implement and

which add little environmental protection. In addition, the proposed modifications

would addflexibility by taking into account recent years' improvement in waste

management capability. Wastes would be managed "close to home" and provide

effective protection of human health and the environment.

Response: Comment noted.

Comment 270: The commenter stated that overall, the changes proposed for the stateonly requirements will lessen the burden on the regulated community while ensuring

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continued protection of human health and the environment, but that further reduction of

unwarranted regulation should be given serious consideration by Ecology.

Response: Comment noted.

Comment 271: The commenter stated that Ecology has formulated a number of very

worthwhile changes to a very complex and somewhat outdated regulatory program and

encouraged Ecology to carry through with the proposals and expand the scope of the

changes. Where Ecology is more stringent than the federal program, there should be a

sound and solid justification.

Response: Comment noted.

Comment 272: The commenter (who represents over 6300 small business owners)

supports the proposed revisions to the Dangerous Waste Regulations and stated that the

proposed rules will assist small businesses in several ways. The commenter also stated

that, as a member of the Advisory Committee, additional revisions were sought by

small businesses, but that compromises were necessary among the members..

Response: Support noted.

White Salmon Meeting

Comment 273: One commenter expressed concern that a public hearing was not held

in White Salmon/Hood River even though some citizens requested such a hearing.

Response: When the rule amendments were proposed in the State Register, it was also

announced where and when public hearings were to be held. Four locations were

chosen around the State based on attendance at previous hearings that have been held

on the Dangerous Waste Regulations. After the proposal and information about the

public hearings had been filed with the Code Revisor's Office, Ecology received a

request for another public hearing in White Salmon/Hood River. At that point in the

process, it would have been difficult to formally file this additional hearing and get the

information out to the general public in time for them to attend. Ecology staff

determined that the most efficient course of action would be to attend a meeting with

the group of people who had expressed a desire for a hearing to answer questions and

listen to their concerns. While it was not a formal public hearing, Ecology staff did

note the concerns and comments that were expressed. Public comment on a proposal is

taken in two ways- either written comment that is received during a comment period,

or public testimony that is given at a formal hearing on the proposal. Since the

meeting was not a formal public hearing, people who wanted to comment and have

their comments considered as part of the public record on the proposal were strongly

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encouraged to submit their comments in writing or attend a public hearing in a different

location.

Allowing for Differences

Comment 274: One commenter would like to see Ecology allow for geographic,

demographic, and economic differences in their regulations and how persons can

respond to the spirit of the legislation. The commenter noted that there are many ways

to accomplish the goal of proper waste disposal. What works in King County is not

necessarily the best practice in Okanagan County.

Response: Ecology is attempting to put more flexibility in the regulations. For

example, Ecology proposed a performance standard for the requirements for small

quantity generators (SQG). Performance standards are one way to give the regulated

community the flexibility to meet the goals of the regulation in a manner that best fits

their operations.

Batch Generation

o

Comment 275: Ecology should consider solving what could be termed the "batch"

generation problem faced by many small quantity generators. For example, a generator

may use a 25 gallon container of solvent, and that gradually becomes spent over a ()

period of several months of use. When it is finally taken out of service, the spent

solvent will designate as a dangerous waste, and may exceed the 100 kilogram level,

thus causing it to become regulated. The generator can't qualify as a small quantity

generator. I'd like Ecology to consider allowing that person to, in effect, average

retroactively, that volume of waste over the monthIs that it is being generated, so they

may be able to qualify as a SQG.

Response: The problem set forth in the commenter' s example is inherent in the

federal regulations and change at the federal level would be necessary to solve this

problem.

Discouraging Creation of Hazardous Waste

Comment 276: Two commenters questioned why Ecology should make it easier and

more economical for businesses to manage hazardous waste. They feel that Ecology

should be discouraging businesses from creating hazardous waste in the first place.

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Response: Ecology agrees that the best option is to not create hazardous waste in the

first place. To this end, Ecology is putting a significant amount of resources into

pollution prevention initiatives. However, Ecology recognizes that some hazardous

waste will always be generated. Ecology believes the best way to encourage the proper

management and disposal of the hazardous waste generated is to make the management

of hazardous waste as easy and economical as possible without risk to human health or

to the environment.

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