October 1995 Responsiveness Summary Comments and Responses This section ofthe Responsiveness Summary contains summaries ofall ofthe public comments that Ecology received on the proposal and Ecology's responses. The comments and responses are organized by section numbersas 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 ofthe abbreviation TSD since the acronym "TSD facility" does not include transfer; 

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


# • 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 WAC 173-303-040. Response: Ecology is considering issuing guidance for the rule sections where these terms appear. If so, these terms will be defined there. These termshave been used in Section 640(5)(e) since 1980 and relate to the definition ofExtremely Hazardous Waste (EHW). Under this rule amendment, an acutelytoxic substance is a category B, A, or X toxic substance (see WAC 173-303-100 for the definition ofB, A, and X). Chronic toxicity is indicated by the characteristic ofcarcinogenicity. The use ofthe term acutely toxic substance in thepreamble referred to a substance that meets the definition

.ofcategory B, 

### A,'or 

### X.

October 1995



### Acute Hazardous Waste

" , .... 

# •

### Comment 3: Several cornmenters supported the modification ofthis 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 ofChapter 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 thetext ofChapter 173-303 WACjust 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 ofcarcinogens since the lists are repealed in 173-303-100. 

### Response: Ecology is maintaining the definition ofcarcinogens for reference. 

### Dangerous Waste 

# , 

# c

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

IIEHW II • The abbreviation "DW" is used to represent that portion ofthe 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 ofthe rule.

October 1995

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### ~"-i!'~~':\~' ..

# •

.' 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 theyrepresent 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 thechange 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. 

# •

0:, : .}; / l ..**~":.** ; . 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 sciencesor engineering, and has

... "

### because a person with many years ofdirectly applicable experience and professional training should be fully qualified. 

### Response: The definition for "qualified groundwater scientist" is a federal definition that thestate is adoptingfor 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 itselfcannot be changed, the definition is being divided into two sentences to make it easier to understand. 

### Special Waste Comment 13: Support broader definition ofspecial 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 ofspecial 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.

. ;

October 1995 

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. 0":- 4Response: 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. 

# •**~~~~~~'** ,,\.t:**:.~ :'~~** **·~,.~1** 

### ..**··J;r·i~ ~~**  . .'.;"'?:)','; I • -'.**>.~ .~**  "_.- ,;1



# •

• Vessel
Comment 16: Vessel. Change the definition to differentiate between a "vessel"and a "public vessel" to beconsistent 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 offederal 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 oftheDepartment ofEcology. Response: The word "ecology" will be replaced with "the department" for consistency with other areas of the regulations.
WAC 173;.303-070 

### Designation ofDangerous 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


### 5

### Response: Ecology is amending some ofthe 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 containersin 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 designatedprior 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, ifthe waste is treated) the waste would have to be redesignated and relabeled at that point. The wastemust also be redesignated prior to being moved off-site because it is being "generated" at this point. 

# o

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 ofthe 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 

# o

# • ) 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 ofsolid waste" will occur within the next year. Ecology also believes that it will cause less confusion ifthis portion ofthe dangerous waste rules is amended once rather than twice, back to back. Comment22: 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 ofthe 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 ofWAC 173-303-070(3)(b) that further designation may be required for compliance with Land Disposal Restrictions (LDR) also. Response: Comment noted. The language ofWAC 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 ofthe waste is necessary to determine ifthe 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, ifthere is no information about the process that generated the waste, then testing alone can determine the proper designation. 

# • For example, if there is a drum ofwaste about which a generator has no information, then testing will be necessary. Since it cannot be determined that the waste fits the October 1995
7

### •

definitions ofany 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 ofthose 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 ofpersistence 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 criteriais 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)
Comment26: 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 ofEHW. However, the changes in

October 1995 

# o

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

• information. 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, ifa waste still meets the definition of an EHW after compliance with the federal LDRs then it will properly be subject to the EHW land disposalprohibition identified in WAC 173- 303-140(4)(a). 

### WAC173-303-070(5) Additional Waste Designation


# •

• 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 rulewas 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 theprevious "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 ofwaste 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


### 9

### 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 includedin 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 

### ifit 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. 

### Comment30: 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 ofthe 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 oftoxic 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 ofproduct 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 haveconstituted "special knowledge" and thesewastes would have been designated toxic EHW with a October 1995


### 10

# •

•

• ,-,

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 ofsimilar 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 ofsimplification and is less burdensome. These wastes are ofcomparable hazard to RCRA wastes that are also regulated at 2.2 pounds. Ecology believes that this rule meets the regulatory reform goals ofESHB 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 ofthe final rule. Ifthis document is effective, the rule language may be amended in the next rule making to incorporate the language developed. October 1995
11

### Comment 

### 35: The department shouldprovide clarification in this section that SQG waste may be subject to regulation by localjurisdictions 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 ofSubsection 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? 

# '"


# c

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 ofwaste 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 offacilities 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 ofdangerous wastes for persons who qualify as small quantity October 1995


### 12**~~~.di:** .**iit~.)~~~** ",

.

# •

•

• 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. Comment40: The change in the accumulation limit means businesses can defer addressing the cost ofmanaging and disposing oftheir wastes to future fiscal years. Generators of100 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 offtheir 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 oftheir waste improperly, they have already beenaddressing the cost of managing and disposing oftheir 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 ofbatches ofwastes so they may be reused, such as distillation ofsolvents, 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 ofwaste. 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. 

### .Comment41: 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


### 13

# ·'

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 ofthe fully regulated generator requirements is one way. In addition, Ecology will publish BMPs that will provide additional guidance to generators on the types ofwaste 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 ofvendor 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 ofthan 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 ofwaste on-site. Ecology believes that thegeneral performance standard combined with recommended best managementpractices will effectively address the possible problems associated with the increase in the accumulation limits. The commenter's example ofthe oil based paint waste perfectly illustrates the site/waste specific nature ofeffective 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 ofraisingthe 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 of2,200. An accumulation limit of 1,500 pounds (approximately 3 drums) would provide SQGs October 1995 

# o 14

# •

•

• ..

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. Ifcovered 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 iffunding is made available specifically for SQG programs. This limit would allow SQGs to accumulate a full barrel ofwaste and begin filling a secondbarrel. 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 localjurisdictions. 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 ofwastes. 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 localjurisdictions with the maximum flexibility to provide the most cost effective service to their SQGs. Ifa localjurisdiction is conducting periodic collection events, they will be able to hold them less frequently and still provide the same opportunity for businesses in theirjurisdiction 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 ofSQGs 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 Is 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 Divisionto 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 of070(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 theperformance standard. Enforcement may be difficult. Response: The purpose of theperformance 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 healthjurisdictions 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 localjurisdictions be expected to amend their MRW regulations to include more stringent performance standards adopted by Ecology? Who will notify businesses and.localjurisdictions 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 healthjurisdictions 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 ofthe performance standard is to provide Ecology with the abilityto address a situation ofwaste mismanagement in the event of a referral by a localjurisdiction or in the absence oflocal 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 providepublic notice to businesses and localjurisdictions 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 enforcementbe coordinated between Ecology and localjurisdictions? Response: The purpose ofthe performance standard is to provide Ecology with the ability to address a situation of waste mismanagement in the event of a referral by a localjurisdiction or in the absence oflocal authority. Each incident is prioritized and Ecology attempts to first resolve issues with businesses without enforcement. It is Ecology's experience that each localjurisdiction 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 eachjurisdiction in order to custom fit its available support with thejurisdiction Is needs. Enforcement coordination issues are addressed through these working relationships. After the regulations are adopted, Ecology will be coordinating with localjurisdictions to continue discussing the potential impacts of these amendments and building effective working relationships. Comment 

### 52: In Section 070(8)(b)(iii) change "either ofwhich is" to "which is". Response: Comment noted. The original language will be kept for clarity. Comment 

### 53: Several commenters supported the use ofBMPs 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 ofguidance 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 ofcommunicating 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: Ifthe container management standards are converted from regulatory requirements to BestManagement 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 ofthe commercially available hazardous waste labels. This will be clearly reflected in the language ofthe BMP in the guidance document. 

### Comment 57: Several commenters urged Ecology to turn the BMPs ofSection 070(8) into requirements. They noted that the increased accumulation limit along with the lack ofspecific container management requirements will result in an increased risk to human health and the environment. Many businesses willrealize 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 ofcleanup. 

### 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 ofthe 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 ofmore prescriptive requirements. Ecology believes that theperformance standard approach will achieve at least the same, ifnot 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 ofbusinesses 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 ofwaste 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 ofequipment is relatively inexpensive. For example, a reusable secondary containmentpallet 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 forharm to the environment. Ecology believes that flexibility is important because ofthe diversity ofgenerators 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 healthjustification for allowing an SQG to self-transport the same volume and type ofdangerous 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 ofWashington 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). 

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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 ofhuman 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



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• flexibility and provides Ecology with the ability to respond to cases ofmismanagement prior to a release to the environment.
WAC 173-303-071 Excluded Categories ofWaste
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 easierto understand. The amendments to the Dangerous Waste regulations were proposed in June, 1995 primarily to accomplish two goals- toimplement 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) ofthis

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 ofsolid 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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Response: During the Dangerous Waste Regulatory Reform Project, Ecology looked at 

# C'/ the federal exclusions that are not part ofthe 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 ofused 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 Actare 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 ofChapter 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 of071(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 of071(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 ofthat 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 ofthe rules, it is easier for the reader to find the information than ifit 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 ofnew technologies at pilot and engineering scale which is critical to the proofand adoption ofnew technologies by site remediation contractors and potentially reliable persons. Response: Support noted. Comment 74: 07l(3)(s) Ecology should elaborate on the definition ofa 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 ifit is located within another "facility", would be considered a separate laboratory or testing facility for the purposes of this exclusion ifit 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 ofa 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 effortbecause 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 ofeach treatment process being able to treat itselfas 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 earlierin the paragraph.



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

will be considered separate for the purpose ofthis exclusion ifit 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 ofwhether 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 ofthe overall increase in the amount of waste allowed under this exclusion. Treatability study residues are now included in the quantity limitation. The state cannotbe less stringent than the federal rule, so the amount ofresidue must be counted toward the total amount ofwaste. That total may not be exceeded; residues should be removed before additional amounts ofwaste 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 oftotal waste the treatment facility can receive for testing. It could put a laboratory out ofbusiness ifthe archiving were required by regulators. Ifthe 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: Ifa testing facility or laboratory decides to archive material from a treatment process (treatability study), up to 500 kg oftreated 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 ofmaterials archived must be counted against the total October 1995 

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• storage limit, that is,' the total amount ofwaste allowed under this exclusion. Ifa 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 ofthese exclusions. Response: Supportnoted.
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 ofthe Safe Drinking Water Act) are not exceeded in the groundwater at the point ofcompliance 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 ofindustrial waste with October 1995
27J'

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 ofcompliance" 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 protectivelycontain wastes of this hazard. The design standards applied at new MSW landfills were not available when the regulations were developed in 1984. Dueto the designs ofMSW 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 ofthe 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 ofcare suitable for special waste. Since the requirements for MSW landfills are newerthan hazardous waste landfill 

# C"') requirements, some ofthese 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 ofthe system include siting, groundwater monitoring, corrective action, closure cap design, post-closure monitoring (30 years), and financial assurance. All of these elements ofmunicipal solid waste landfills provide comprehensive environmental protection. Moreover, because special waste represents such a small volume ofwaste 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. Staffanalysis



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# .' 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.



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• 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 ofspecial 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 ofa streamlined petition process for exempting wastes. This puts the burden ofprooffor 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 ofthe Dangerous Waste Regulations. It allows case-by-case evaluation ofwaste 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 localjurisdictions because the universe ofspecial 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 localjurisdictional waste screening ofspecial 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 ofnot exceeding risk based levels for carcinogens at the point ofcompliance within the facility boundary. Leachate contamination estimates used in developing this model were based on municipal solid waste co-disposed with industrial waste. Washington Is definition of special waste is a subset ofindustrial waste. Ecology believes this design standard is consistent with the intent ofthe special waste management standards proposed in 1984 and will provide protective management for special waste.

October 1995
30indicates that because of the low toxicity ofspecial waste, landfills accepting special waste will not exceed Model Toxics Control Act (MTCA) cleanup levels. 

### Comment 80: Ecology should expand the definition ofspecial 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 ofpoison. 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 ofspecial 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 ofspecial 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) Ifliquids 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

.ofwaste (special waste) to manage with its own distinctstandards. 3) Management ofliquid dangerous waste is already complicated. Wastes discharged under permit-by-rule have one set ofrequirements, while recurrent liquid wastes discharged via the domestic sewage exclusion have another set of " requirements. Creating a classification ofcontingently managed liquid wastes would add another layer ofcomplication with marginal benefit to most businesses.

October 1995 

# o

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Comments 85: This is another example ofthe state passing offan unfunded mandate to local governments. Ecology is passing on the increased management and disposal requirements ofspecial 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 staffsince 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 ofspecial waste were designed to be enforceable by Ecology so as to not shift workload to local governments. In addition, the total volume ofspecial waste generated in Washington represents 0.5-1.5 percent ofthe 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 theirjurisdiction. At this point, only a few landfills that meet the requirements ofChapter 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 ofstates send wastes ofthis 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, aspart ofthis 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 ofeducating homeowners how to reduce and dispose of hazardous waste, it does not make sense to allow businesses to landfill waste. 

# •

. '" :,. - . .'.'

•• - • ,"••• ;' r 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 ofwaste 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 ofwaste. 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 ofthe "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 ofthe 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 ofspecial 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 ofthe 2200 pound limit. The generator can maintain a record ofwhen the accumulation began in any retrievable form. Comments 90: Ecology should clarify what is meant by segregation ofwaste at transfer stations. Failure to clarify could lead to significant expense. Clearerlanguage 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 itselfand refers to "physical segregation, packing or other means to ensure that workers andthe public are not exposed to the waste stream." Comment 

### 91: Ecology should make clear that generators mustprovide 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 ofthe 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 ofChapter 173-351 WAC without the administrative requirements. What does Ecology mean by permitted in accordancewith 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 ofChapter 173-304 WAC. It would be difficult to incorporate the technical requirements ofChapter 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 ofpermits 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 ofChapter 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 ofChapter 173- 304 WAC. Ecology does not have the resources to make case-by-case interpretations ofcomparability oflandfills 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

_ ofa landfill permitted under Chapter 173-304 WAC. 

### Comment 94: Ecology does not have the technicaljustification 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 ofspecial wastes to lined landfill units in those states that have obtained equivalency to federal solid waste regulations. Suggest Ecology addlanguage, "or ifout ofstate" under 40 CFR Part 258. October 1995


### 34

# •

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• 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 ofstate, 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 ofcare for wastes ofthis 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 oflocal government or landfill operators to refuse' any waste stream or class ofwastes 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 ofarid 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 ofChapter 173- 351 WAC. Management standards for small quantity generator (SQG) waste are established by local governments as part of moderaterisk 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 ofspecial 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 withspecial 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 ofSQG 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 % ofthe total recurrent dangerous waste stream (50% ofthe state-only recurrent dangerous waste stream). Most ofthat waste stream is from a handful ofaluminum smelters in the state. With respect to solid waste, it is difficult to estimate the effect ofadjusting 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 ofthe "state-only" dangerous waste stream would become solidwaste with the proposal, or on the averagejust 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 ofspecial waste as those imposed on transfer stations. Response: Ecology does not know ofany opportunities for worker exposure at rail loading facilities, Rail loading facilities involve transfer ofcontainerized waste. If there is transfer ofwaste outside ofcontainers 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 ofhandling 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 ofspecial waste at the transfer station is almost impossible" because the waste is usually commingled by the generator at the point ofgeneration. Response: Generators are required to have special waste clearly identified separately from the solid waste stream. Ifit is not clearly identified, Ecology would assume the whole waste shipment to be special waste and subject to all ofthe conditions ofthe exclusion. October 1995
37

### Comment 110: Would a permit for special waste management be required by local government? 

### Response: No special waste permits are requiredwith this rule proposal. At the discretion ofa 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. Ifit is a log, how long should it be maintained. 

### Response: A record ofspecial waste accumulation should be maintained for 5 years. The record can be in any legible, retrievable form .. 

### Comment 113: The paperworkburden 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 ofpaperwork necessary to track special waste, ensure worker safety, and implementpollution 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 ofspecial waste, than for generators ofdangerous waste. There are no longer requirements for personnel training plans, preparedness and prevention plans, contingency plans, and emergency procedures. These are all required ofdangerous waste generators, but not special waste generators. 

### Comments 114: The rule imposed more requirements for recycling special wastes than disposing ofthem. 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 ofWAC 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 ofspecial 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: Ifthe equivalent concentration ofa toxic dangerous waste is equal to or greater than .001 

### % and less than orequal 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 theequivalent 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: Ifmunicipal solid waste landfills receive special waste which includes such things as PCB contaminated material in excess ofthe 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 ifa landfill becomes a cleanup site. The site must release contaminants into the environment in excess ofwater 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 ofthe Regulatory Reform Advisory Committee meetings Ecology calculated the affect ofthe 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 ofspecial waste is

.minimal in comparison to municipal solid waste, and 2) the hazardous constituent

concentrations ofsolid waste are relatively low.

October 1995


### 39Hazardous 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 ofwastes 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 ofthat 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. Byclarifying 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 ofPCB 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 ofcourse, 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 perWAC 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 ofthis section (Deletion ofwaste 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.
·W 

### AC 173-303-090 

### Dangerous Waste Characteristics 

### WAC 173-303-090(4) Quantity Exclusion Limit
Comment 121: Change "quantity ofhis waste" to either "quantity ofhis or her generated waste" or "quantity oftheir generated waste" in keeping with the rest ofthe 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 ofdocumentation 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 ofgenerators. 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 managementpersonnel may not be aware of their presence. This is the type of solid waste collection system utilized by most generators. Ecology believes that management ofsolid corrosive wastes under either the provisions ofthe full Dangerous Waste Regulations or the special waste exclusion provides the appropriate level ofprotection for this waste class. Under either ofthese management systems generators have options other than disposal. Typically, generators ofsmall 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 ofwood 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 ofwood ash generated make use of the material as a soil amendment or concrete ingredient viable. However, both of these uses for wood ash involve "landplacement" 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 promotereuse. 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 ofa 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 ofboth 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 ofTCLP constituents. Comment 

### 127: Two commenters support the deletion ofEHW 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 bookdesignation 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 ofthe same material would have to be classified as EHW due to the elimination ofthe Nevada graph. There has been nojustification given for eliminating the factor ofquantity from the EHW designation under the book designation procedure. Response: There is an error in the narrative explanation ofthe 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 ofthe same material would have to be classified EHW. Ecology has not eliminated the factor ofquantity. It is embodied in the Quantity Exclusion Limit (QEL). This simplifies designation by regulating wastes ofcomparable 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

44 

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# • Response: Ecology has not made changes in the Dangerous Waste Regulations that affect when a waste generator may useprocess 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)


# •

• 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 ofthe 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 useofa 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 LCsowill be moved from the definition section tothe 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 ofdangerous waste: Ifit kills 50% ofrats exposed in a test at concentrations ofanything greater than 5000 mg/kg. This is called an oral rat LDsoof5,000 mg/kg. 

### Response: An LDsois a calculated dose ofa material which is expected to cause the death of50% ofthose organisms exposed under defined conditions ofthe test. An oral rat LDsois 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. IfLDsodata exist, these can be used as part ofthe waste designation process. The dangerous waste oral rat bioassay simply determines ifthe waste exhibits an LDsoabove or below the regulatory threshold of 5000 mg/kg. Ifthe waste LDsois less than or equal to the regulatory threshold, the waste fails thebioassay 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 ofthe toxic waste in the waste would now be 10timeshigher before having to go to a hazardous waste landfilL 

### Response: The waste designation level of500 mg/kg oral rat is the level used to define special waste (state-only solid waste). Ifa specific setofconditions are adhered to, special waste can be disposed in municipal solid waste landfills compliant with Chapter 173-351 WAC. Wastes ofgreater 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 ofcare 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 ofpublic health. 

### Response: The fish bioassay was revised from 1000 mg/L to 100 mg/L to calibrate the fish bioassay with the rat bioassay of5000 mg/kg. The rat bioassay is based upon standard hazard classifications. Wastes oflower 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 mostprotective in the nation. ·October 1995
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• Comment 138: The Golder report supports the testimony ofHeart ofAmerica that the fish bioassay is highly flawed and results in nondesignation ofwaste if tested using the rat test. Response: The Golder Associates report is fully supportive ofEcology's conclusion regarding the comparison ofthe fish bioassay with the rat bioassay. The report concluded that the fishbioassay 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 LCsoratio equal to or greater than 50: 1 while approximately 30% demonstrated a ratio less than 50: 1. Therefore, for the majority ofchemicals 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 ofthe fish bioassay test for toxicity will result in significant, environmental impacts by not designating all dangerous waste as dangerous

.and increasing the amount ofspecial 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 ofprotection of860 mg/L, The use ofa 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%ofthe 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 ofcomparable stringency. When the tests are ofcomparable stringency the disincentive for using the fish bioassay is removed and more generators will use the fishbioassay to test their waste. Ecology's objective ofencouraging 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 ofexpense and lack ofavailability. Generators would, therefore, continue to book designate waste rather than perform bioassay tests.

October 1995


### 47Comparable 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% ofthe. constituents used in thetest 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 ofaccurate 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 ofconstituents in a waste stream is estimated and the concentration ofthese constituents is also estimated. This estimating makes it difficult to account for any synergistic effects ofmultiple constituents in waste streams. By comparison, there is no estimation in a bioassay. The result ofthe test is the complete integration ofall 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%) ofgenerators 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 ofchemicals 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 ofa 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 

### 48 

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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 ofa median ratio for comparing bioassay data. It acknowledges the wide range in data represented bythe median. This is consistent with Ecology's independent comparison ofbioassay 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 oflead which would fail book designation or arat 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 ofequivalency 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'thalbody burden is not equivalent to LDsoor LCso, it is not appropriate to compare lethal body burden ratios with LDso:LC soratios. 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 isproposed to be ten times less protective compared to existing law. Response: Adjusting the fish bioassaylevel from 1000 mg/L to 100 mg/L is a ten-fold reduction in concentration ofwaste 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 ofthese 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 ofregulation would not change. Ecology's best estimate is that approximately 25 percent ofthe state-only recurrent dangerous waste stream (12.5% ofthe total dangerous waste stream) that represents a class ofhazard comparable to solid waste would become regulated as solid waste with October 1995


### 49the proposed revision to the fish bioassay. Solid waste facilities have been designed to manage wastes ofthis hazard level. Therefore, the solid waste regulatory system is an appropriate level ofcare for these wastes. 

### Comment 143: According to Ecology staff, 40 percent ofthe waste tested at 100 mg/L passed the fish bioassay despite failing the rat bioassay. 

### Response: After revising a broad range ofhazardous constituents, Ecology concluded that even with a shift ofthe 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 ofconstituents 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 of5000 mg/kg oral rat (Category D). 

### Response: Ecology believes Category D toxics should be regulated as dangerous waste because an oral rat LDsoof5000 mg/kg is generally recognized as the starting point for 

# c\. classifying materials as hazardous (see e.g., National Academy ofSciences 1974 System for evaluation ofthe hazards ofbulk water transportation of industrial chemicals, Report AD-782 4-76). Ecology's carcinogen list review indicates that significant numbers ofcarcinogens will also be captured as dangerous waste by maintaining this dangerous waste designation level of5000 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 ofproblems with test methods when a 1 mg/L solution ofwaste 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 oftest 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 reasonablehowever, because wastes theapass 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 ofhazard and to keep the waste from reaching waters ofthe 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 oftesting required ofgenerators, Ecology is clarifying that other species can be used for book designationif

### salrnonid and fathead minnow are not available. Although the fourth sentence is consistent with the currentbiological testing methods manual, the manual is undergoing revision and certain portions ofthe method may be modified.

Comment 

### 148: Support changes to bioassay if Ecology updates bioassay manual in timely manner. Supports realignment offish bioassay Response: Support noted. Comment 

### 149: Do not support proposed changes to toxicity. Response: Comment noted.
october 1995


### 51Comment 150: Ecology should revise testing methods manual to address gill abrasion. (/
Response: Gill abrasion issues are generally associated with testing at higher concentrations ofwaste in solution. With the adjustment ofthe 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 ofpersistent waste in RCW 70.105.010(6) and should not be included in the polycyclic aromatic hydrocarbon (PAH) summation. Concerned that regulation ofnaphthalene will result in a large number ofhazardous 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 ofPARs to be summed toward the 1

### % PAR designation level because ofnew 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 ofnaphthalene 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 ofthe naphthalene-containing fuels. Fourth, naphthalene is common in petroleum contaminated soil. If very low levels ofnaphthalene caused soil frompetroleum

.contaminated sites to designate as dangerous waste, it could hamper site cleanups by

imposing more requirements without providing additional environmental benefit. In the absence ofregulating naphthalene as a PAR, existing state criteria along with EPA's ignitability and toxicity characteristics ensure protective management offuel and other PAR wastes; Comment 

### 155: Ecology's rationale for developing a list ofPAR constituents that includes less than four membered ring PARs does not hold up under scientific scrutiny. The addition ofthese 2 and 3 membered ring PARs to the list ofPARs 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 ofthepersistence criteria because they commonly occur in PAR

October 1995


### 53· contaminated waste, persist in the environment, and contribute cumulatively to the toxicity ofthe 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 ofman or wildlife and, (ii) is highly toxic to man or wildlife; (b) if disposed ofat 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 ofpetroleum 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 ofPAHs. 

### Response:

.Support noted. 

### Comment 158: How does Ecologyjustify 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 ofPARs 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 ofquantity 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: Differentbrackets 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 mostpeople 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%) ofPAHs. Polycyclic aromatic hydrocarbons present a toxic and bioaccumulative hazard to solid waste workers. In addition, PAHs are leading constituents ofconcern 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 ofa one pound quantity ofPAHs. This is also the starting point for regulation oftoxic 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 thistesting or else drop the requirement that halogenated hydrocarbons be persistentper 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 ofcarcinogens, 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 ofthese classifications include a number ofcarcinogenic 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 oftests along with the EPA Is 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 ofannual report data shows that very little waste 

### « 0.01 %ofdangerous waste stream) is being identified as dangerous based on the list. Ecology's experience with a list of carcinogens is similar to that ofRhode 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 capturecarcinogenic wastes that are not already identified through EPA lists and characteristics. In theDangerous Waste Regulatory Reform Project report and the issues papers associated with the report, Ecology documented an extensive review ofapproaches 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 ofthe EPA's RCRA program. These issue papers are available upon request from Ecology and are a part of the rule makingrecord. 

### Comment 167: Use ofacute toxicity to regulate carcinogens as dangerous waste is inadequatebecause it does not reflect the carcinogenicity ofthe waste. 

### Response: Researchers have noted that more potent carcinogens are often more toxic as well, so in many cases a measure ofacute toxicity is more reflective ofthe risk ofa carcinogen as compared with using an arbitrary level (e.g. 100 ppm) for all carcinogens regardlessofpotency. Moreover, acute toxicity is not the only means that will be employed for regulating carcinogens. The persistence classifications and the lists and testing procedures ofEPA'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 ofrisk. Risk is based on the potencyofthe carcinogen and the exposure to it. The present level of 100 ppm for the list ofcarcinogens is not based on the risk ofany individual carcinogen on the list. The 100 ppm level was selected 15 years ago so that the levels at which Ecology regulatescarcinogenic compounds, per WAC 173-303-100, is also the level at 

### which Category Atoxicants are regulated. Ecology's analysis indicates that the best way to regulate carcinogens as dangerous waste is with a measure ofacute toxicity along with a battery ofother 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 ofthe presently regulated list ofcarcinogens. 

### 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 ofcarcinogens that Ecology currently regulates as dangerous waste. Ecology's research indicates that a measure of acute toxicity used in conjunction with a battery ofother 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 ofwastes 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 ofthe listed carcinogens, so it is very difficult to assess whether a listed carcinogen is present in waste streams. 

### Comment 171: Ecology reduced its list ofcarcinogens 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 ofwaste identification, it was October 1995**~8** 

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• immaterial which list was referenced. The importantpoint to note is that identifying wastes as dangerous per a list ofcarcinogens 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 ofDOP 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 ofMedicine 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 ofthe DO?, and DOP could also be leaching out ofthe 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. October 1995


### 59

### Comment 174: The current definition ofcarcinogens keeps carcinogens out of landfills and back alleys. There is no analysis ofhuman health impacts with this proposal. 

### Response: The currently regulated list ofcarcinogens has virtually no effect on keeping carcinogens out oflandfills 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 ofwaste 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 ofcompliance 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 ofnot 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 ofwaste 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 offatal cancers for every lO,OOO persons exposed to specific carcinogens at concentrations of500 mg/kg oral rat. 

### Response: Estimates of cancer risk in humans are based on the potency ofthe carcinogen and the extent ofthe 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. October 1995
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• Comment 176: This rule change will increase the level tenfold ofcarcinogens 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 oftests to maintain a very protective Dangerous Waste Regulation including a protective fish bioassay level of 100 mg/L and a rat bioassay level of5000 rng/kg. Ecology intentionally maintained protective bioassay levels to ensure regulation ofcarcinogens 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% ofthe 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-offboxes 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

. 

### Comment178: Delete reference to IARC monographs in WAC 173-303-100(2) to be consistent with elimination ofcarcinogenicity criteria. 

### Response: The reference is deleted in the final rule. 

### Comment179: Support repealing the carcinogen list. 

### Response: Support noted. 

### Comment180: 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)

October 1995


### 61

### 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 statementin 045, changes must be made to 090(8), 110(4); and 110(5) to reflect when Ecology needs to approve an equivalent method. SomeEcology 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 ofSW 846. In 60 FR 3089, it states that "Several ofthe hazardous waste regulations under subtitle C ofRCRArequire 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 ofappropriate SW-846 methods in general .. ". It does not state that the list is exclusive, but does go on to list a number ofthe sections that require the use ofa specific methods for a particular application, or the use ofappropriate 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 ofan 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

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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 ofthe 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 ofChapter 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. October 1995


### 63Comment 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 ofthe 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 ofrequiring 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 ofthis 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 October 1995
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• rules, they will be reminded that Ecology, not EPA, has that authority. Decision making authority varies from field or headquarter stafflevel to section or program manager level to the"Department ofEcology 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 if173-303-160 is intended to refer to a problem associated with emptying containers using hand pumps instead ofsubmersible pumps. Response: The revisions to WAC 173-303-160 are intended to aid solvent recyclers in emptying containers via use ofa 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 ofWAC 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 ofAHW. This common threshold for toxic waste is now defined by an oral rat LDsoof 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


### 65would 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 ofrinsate. Application ofthe requirernent that 10% ofa 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 theirjudgment regarding the quantities ofrinsate to be used for each rinse. 

### Comment 193:· Ecology should clarify the amount ofhazardous 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 ofhazardous waste remaining in empty containers annually. 

### Comment 194: Fully support adjusting the definition ofempty 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 ofnon-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 oflabpacks. 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 ofsmall containers ofhazardous 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 ofa labpack in a landfill. 

### Comment 

### 197: Ecology might consider the merits ofallowing 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 ofa .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 counterEcology's goals ofdangerous waste reduction. 

### Response: The proposed language is being changed so that nonbiodegradable sorbents are only required when the labpack is to be disposed ofin 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 containmentbuilding 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 ofWAC 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 itselfis not new and was not proposed for change.

. October 1995


### 67

### WAC 173-303-200(1)(b)(iv)
Comment200: 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 ofthe 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 iftWAC 173 303 400(3)(8;)". 

### Comment201: Since the effective date ofFebruary 18, 1993 has passed, it seems appropriate not to discuss the relevance ofthat date andjust indicate that the professional engineers certification must be obtained prior to operation ofthe unit. 

### Response: The issue ofdates is often somewhatconfusing because ofthe 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 ofrules when the state includes the federal dates. For the sake ofconsistency, the date will be retained. 

### Comment202:

.The commenter supports the incorporation ofthe "containment building" requirements as applicable in sections 040, 200, and 695. 

### Response: Support noted.
WAC 173-303-282(6)(C)(O 

### Siting Criteria
Comment203: 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 "ordangerous 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 ifa 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
Comment204: In regard to checking for biodegradable sorbents, this section may be interpreted incorrectly as written. Ifthe word "improperly" is added, it will clarify that the landfill needs to ensure they are only accepting non-biodegradable sorbents. Response: Ecology appreciates the commenters I interest in making the requirement read more clearly. The commenters' intentions are understood; however, ifthe 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. Ifthe 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 theinclusion 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

October 1995


### 69Comment 207: To simplify the way that 40 CFR 265 subparts are referenced and to include all ofthe 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 ofcontainmentbuildings (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 somewhatbehind the federal hazardous waste rules. Some of the federal requirements areincorporated by reference, and others are written into the rules. The provision in 045 applies where rules have been incorporated by reference. Ifthe state has not yet adopted a federal provision thatis 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. Comment208: The purpose ofproposed 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 isbecause 173-354 is more. restrictive than the federal used oil requirements of40 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 ofEcology should adopt 40 CFR 279 with modifications. Response: The reason Section 515 did not appear as part oftheproposal 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 finaldecision has not yet been made. Ecology is presently considering comments on the used oil rules andwill 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 ofadditional instruments besides the financial test to be used for liability coverage. This realignment will decrease the cost ofcompliance 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 beliefthat 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 ofDW 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

.. October 1995 

### '1

### 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 toprevent 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 ofstorage, 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 

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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 ifthey are analogous to federal provisions. Iffederal rules retain an inspection for liquids and do not 'approve I 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 ofthe 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 ofan 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 of395(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 ofat 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 ofthe Hanford reservation. That site has not been developed. October 1995


### 71WAC 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 commenterbelieves 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 theexemption 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 andfederal rules are not identical, each ofthese 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 simplifythe 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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### 219: To be consistent with the LDRs, underlying hazardous constituents apply when waste codes DOOl, DOO2, or any ofthe 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. Ifthe 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 of830 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. Ifthe commenter is asking why "Class 2" was assigned to the category "Other changes", the state cannot be any less stringent than the federal requirement. Ifthe comrnenter is asking why the category "Other changes" was included as a modification, the change originated in the January 29, 1992Federal 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
October 1995 

## '5Comment 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 ofEPA 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. Ifthe commenter's example indicates a product mixture of5 %.Methylene Chloride and 5% Cresylic Acid, then it meets the 10% rule. Ifthe product is used in degreasing

. then it meets the definition ofFOOl for Methylene Chloride and since it also contains

Cresylic Acid the waste code F004 needs to be included. Ifthe product mixture is used as a solvent and spent, then it is F002 for Methylene Chloride. Since it also contains October 1995


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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, ifthe commenter's example indicates a mixture oftwo listed wastes, FOOl and F004, then the mixture (regardless ofthe concentration ofeither listed waste) is a listed waste and carries the waste codes ofthe 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 ofwastes. 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 ofthe 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 ofthe state legislation without adding an additional burden on an unintended portion ofthe 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 soldor otherwise transferred for salvage or disposal afterthe completion or termination of their useful lives and which containpolychlorinatedbiphenyls (PCBs) and whose disposal is not regulated under40 CFRpan 761. Nothing in this section shallprohibit such wastesfrom being incinerated or disposed of at facilitiespermittedto manage PCB wastes under40 CFRpart 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 ofWAC 173-303-071(3)(k).

October 1995


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### Comment 228: Ecology's regulatory reform goals do not support increased state regulation ofPCBs or ofused oils. Current Washington State law does not require or authorize additional expensive regulation ofPCBs. 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 ofPCBs or used oil with this rule change. The major aspects ofthis 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 ofthese 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 oftransformers, 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 ofbushings to the state regulatory listing does 

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not appear to be within the scope ofthe 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 ofWAC 173- 303-9904 to clarify the listing. Ecology's experience at equipment salvage yards has been that bushings were a major source ofPCBs 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 ofelectrical equipment. 

### Comment230: 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 ofthis low level PCB oil is ambiguous in the EPA rule. EPA representatives have not been able to clarify disposal

October 1995 

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authorities or associated enforcementprovisions. 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 ofWOOl 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 ofWOOl 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 ofcertain 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 ofWAC 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 of40 CFR 761.20(e) have been pointed to as regulation ofdisposal 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 ofthe used oil rule. October 1995


### 79WAC 173-303-9907 

### PersistentDangerous 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 oftoxic and carcinogenic waste generated at Hanford could go unregulated because ofEcology's proposed rule change. 

### Response: The 71 ton figure is the estimated amount ofstate-only dangerous waste generated at Hanford and reported to Ecology in 1993. None ofthis waste will go unregulated with this proposal. All but 12 tons ofthis 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 ofhigh 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). Ifthat 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 theHanford 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 ofDOP contaminated light ballasts are likely to be managed as municipal solid waste offthe Hanford site. As discussed in responses to comments on deletion ofthe carcinogen list in WAC 173- 303-100, DOP contaminated wastes are appropriately disposed in solidwaste facilities (see comments and responses to Section's 100(7) and 073). The 1993 annual report data also include one half ton ofCategory D toxic waste consisting mainly ofsodium and magnesium chloride and calcium fluoride that could be
October 1995
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• subject to regulation as a low-level waste instead ofa mixed waste with the adjustment to the fish bioassay. Ifthe generator chose to conduct a fish bioassay to identify the hazard ofthis 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 ofwastes ofthis 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 ofthis analysis show that 1993 data are representative ofother years. As indicated above, on a yearly basis there are a few tons ofcontaminated HEPA filters and trace quantities ofother state waste that could be affected by the rule changes. Comments 237: Ecology did not know that there is no regulation ofHanford's radioactive waste burial grounds. The Department ofEnergy's radioactive waste burial grounds do not come close to regulatory standards. Response: The Department ofEnergy's low level burial ground trenches (LLBG) are regulated underthe Atomic Energy Act (AEA) by the Department ofEnergy as well as under the Resource Conservation and Recovery Act (RCRA) interim status regulations. The AEA is implemented through Department ofEnergy 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 aminimum, 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 groundwaterbefore 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 oftests and lists to determine the hazard of a waste. This ensures that mixed waste will continue to be managed in these lined trenches.

October 1995 

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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 ofradioactive waste. The Department of Energy regulations are orders not regulations. These orders do not have the force oflaw 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 ofHealth. 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. October 1995 

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• Comments 240: Disposal oftoxics and carcinogens in unregulated trenches poses higher risks ofreactions and groundwater contamination.· Disposal of "state-only" wastes in Hanford's unlined trenches may greatly increase the spread ofradionuclides in the burial trenches. Ecology should not assert it is ok to compound the contaminated groundwaterproblems 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 ofmoney to cleanup. Response: After reviewing the last 3 years ofavailable 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 ofDOP, a probable human carcinogen. Seven tons ofthese filters were generated in 1993 (the last year ofrecord). This proposal would affect burial ground disposal practices in that these wastes with DOl" contamination would now be classified as low level waste instead ofmixed waste. They would, therefore, be disposed ofin 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 ofdepth 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 ofthe proposal. The Department of Energy reports that 

## nop use in these filters is being phased out at Hanford beginning in 1996.

October 1995


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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 contaminationstems 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 ofa 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 presentin 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:

October 1995 

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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) ofdischarging 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 ofthe 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 ofstate 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 ofthe dangerous' waste rule amendments on importation of RCRA mixed waste. Ecology opposes any importation ofmixed waste to Hanford outside ofthe 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 ofmixed waste to Hanford prior to October dated 8/10/95.) There is significant disposal capacity for low level waste at Department ofEnergy sites around the country. There is no expected pressure for importation oflow level waste to Hanford for disposal. Ifconditions 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

# l 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 ofHEPA filters that the U.S. Ecology site could receive. These potential sources are Department ofDefense installations, Department of Energy sites, and commercial nuclear reactors. Department ofEnergy 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 ofthe Pearl Harbor Naval Shipyard report that approximately five cubic meters ofDOPcontaminated 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.

October 1995 

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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 ofradioactive contaminated ethylene glycol, and these chemical pose synergistically increased risk. IfWashington reduces its definition ofcarcinogenic and toxic waste, the imported waste would be unregulated and buried with far less environmental safeguards than ifregulated 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 ofHEPA filters contaminated with DOP, there is no indication that importation oflow level waste will be affected by this rule change. Ecology has no information that suggests there will be increased importation ofsolvents 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 ofgroundwater monitoring and future burial ground operation and monitoring. Response: As noted in previous responses Ecology does not expect any part ofthis 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 ofoff-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 onlyidentified effect ofthe 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.

October 1995


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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 ofthe 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 ofHanford 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 ofEnergy'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 ofnon-significance was issued by Ecology approximately two weeks after this meeting occurred. This meeting October 1995 

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• had no bearing on the analysis ofexpected 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. Ifan 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 ofthe Dangerous Waste Regulatory Reform project. The Dangerous Waste Regulatory Reform project was designed to carefully evaluate all state-only waste regulations per the goals ofthe 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
Comment248: 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 ofthe 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.

I Based on this analysis, Ecology significantly simplified, tailored, and updated the dangerous waste criteria. Ecology's best estimates are that as a result ofthe proposed changes, 25%ofthe state-only waste stream, composed ofwastes ofthe 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% ofthe state-only dangerous waste stream. The remaining 25% of the state-only dangerous waste stream, which is
October 1995 

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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 ofthe management standards of the EPA's hazardous 

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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 ofF-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 ofhuman 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 ofwaste streams regulated solely by the Washington State dangerous waste criteria and not by the EPA lists or characteristics. Ecology documented large 

# 0 numbers ofdangerous 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 ofwaste of comparable hazard to waste regulated under the federal hazardous waste program would not be managed with an adequate standard ofcare. Examples include: wastewater with copper, nickel, and zinc contaminants; phenolic based machine cooling fluid; sand blast grit with benzene; and a variety ofEPA listed wastes that are mixed or not discarded in pure form so that they are not covered by EPA's hazardous waste regulations. 

### Comment250: IfEcology 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 ofan 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 ofFall, 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 ofthe 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 ofESHB 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 ofauthority ofprovision applies to the entire regulation. Even if not literally applicable to a particular regulation due to the effective date in Section 103 ofESHB 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 ofintent 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 notprovide for the designation and regulation of "dangerous waste." This comment was included in AWB I 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 ofthe 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 RCRAprogram. 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 ofthe Responsiveness Summary, Ecology pointed to the definition of dangerous waste in RCW 70.105.010(5). They did not explain how theproperties of halogenated hydrocarbons fit the definition of dangerous waste. Again, where is the agency's clear statement ofregulatory authority? 

### Response: Ecology has the authority to regulate halogens under RCW70.105.007(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 ofSection 201. Regardless ofany 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) ofESHB 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 ofnot 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 therejustification 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 ofa rule, has the agency met coordination obligations imposed under the new law? Section 201(4) requires an agency to coordinate implementation and enforcement ofa 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 ofSection 201 ESHB 1010. First, benefits versus costs of several proposed alternatives were considered before alternatives were selected. For example, benefits and costs ofvarious alternatives for handling and disposing ofspecial wastes were analyzed. Also, cost savings were October 1995


### 93researched in selecting the new accumulation standard. Secondcin regard to selecting the least burdensome alternatives, Ecology considered several alternatives

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# 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, clearjustification for having a rule 

### thatdiffers 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 ofthis-entire.regulatory reform process. Fifth, coordination ofimplementation and enforcement ofthe rule as

. ' suggested in Section 201(4) is ongoing and will continue to be emphasized \\;'itl1 public outreach in 1996. ,.... ...;'.
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### Environmental Impact Statement (EIS) Concerns
Comment 255: Ecology needs to do an environmental impact statement with this rule amendment. 

### Response: Ecology staffhave 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 ofcreating a probable adverse impact on the environment. Ecology has tailored the amount ofcare that wastes are given with the risk ofthe waste. As a result, during the SEPA checklist development Ecology did not identify any aspects ofthis 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 SEP 1\ 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 ofspecial 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 ofdangerous 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 ofthe 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 ofthe proposed rule numerous public hearings and public meetings were held. Ecology has met and exceeded the requirements ofthe Administrative Procedure Act, in involving the public in this rule developmentprocess. Comment 259: The commenter requested clarification ofthe finality ofthe Determination ofNonsignificance (DNS), and stated that notice ofpreparation ofthe 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 ofJune 7, 1995. Response: This comment Was addressed by a separate letter dated July 17, 1995. A copy ofEcology's response letter is included in this Responsiveness Summary and follows the final comment and response. Comment260: 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 

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### 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 ofuniversal waste concept.

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### 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 ofthe 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 mostlibraries contain the V. S. Code, not compilations ofpublic 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 ofthe proposed revisions and public hearings. Ecology publishes a quarterly newsletter called "Shoptalk" with a distribution ofover 25,000 people. An article appeared in each ofthe 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 ofadditional 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 ofthis rule, and for the determination of nonsignificance. The commenter also requested that all meeting notes and correspondence involving meetings between Ecology's staffand 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 ofany form involving communication between or from the Association ofWashington 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 ofthe 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 ofan acute hazardous waste and an empty container, changing the organization ofthe Discarded Chemical Products list in 9903, and adopting the EPA's Ten Percent Solvent Rule. 

### Response: Supportnoted. 

### 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 ofwastes 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' improvementin waste management capability. Wastes would be managed "close to home" and provide effective protection ofhuman health and the environment. 

### Response: Comment noted. 

### Comment270: 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 ofvery worthwhile changes to a very complex and somewhat outdated regulatory program and encouraged Ecology to carry through with the proposals and expand the scope ofthe changes. Where Ecology is more stringent than the federal program, there should be a sound and solidjustification. 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 ofthe 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 staffdid 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 ofthe public record on the proposal were strongly october 1995
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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 aperformance 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. 

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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 ofservice, 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 month I

### s 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 ofHazardous 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 ofresources 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 ofthe 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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