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ATTORNEY GENERAL STATEMENT
....-.

April 21, 1982

Mr. Donald W. Moos, Director

..

Washington State Department of Ecology

Mail Stop PV-ll

Olympia, WA 98504

Re: Dangerous Waste Regulatory Programs

Attorney General's Statement

Dear Director Moos:

This letter is written in response to your request for

assistance from the Attorney General's Office with regard to the

dangerous waste regulatory. program adopted by the Department of

Ecology.

The Federal Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C.6901 et ~. authorized hazardous waste regulation at the Federal level. Under RCRA, the U.S. Environmental

Protection Agency (USEPA) is required to adopt regulations

identifying hazardous wast~s, defining generator responsibilities,

assuring safe transport, a~d setting standards for hazardous waste

treatment, storage and disposal. Most of the required regulations

published to date appeared in the May 19, 1980 Federal Register.
The USEPA, under RCRA, may authorize a state to operate a

state hazardous waste regulatory program in lieu of the Federal

program. 42 U.S.Co' 6926(C). Regulations which set out the

procedure incident to obtaining said authorization are published

at 40 CFR part 123. These regulations require that a state

application for authority include an "Attorney General's

Statement." 40 CFR 123.125.

§ 123.125 Attorney General's statement.

(a) Any State seeking to administer a program under

this Subpart shall submit a statement from the State

Attorney General. that the laws, of the State,

••. provide adequate authority to carry out the

program described under §123.l24 and to meet the

applicable requirements of this Subpart. This

statement shall include citations to the specific

statutes, administrative regulations, and, where

appropriate, judicial decisions which demonstrate

adequate authority. Except as provided in

§ 123.128(d), the State Attorney General or

independent legal counsel must certify that the

enabling legislation for the program for Phase I

was in existence within 90 days of the promulgation

of Phase I. In the case of a State applying for

interim authorization for a component of Phase II,

the State Attorney General .•. must certify that

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the enabling legislation for the program for that

component was in existence within 90 days of the

promulgation of the regulations comprising that component. State statutes and regulations cited by the

State Attorney General . shall be lawfully adopted

at the time the statement is signed and shall be fully

effective by the time the program is approved .••

This letter is intended to constitute the "Attorney General's

Statement" element in the State of washington's application under

42 U.S.C. 6926(C).

The format of statement which follows was obtained

substantially from USEPA guidance material. The guidance

document we reviewed indicated that it covered" ..• the minimum

legal requirements ..• " a state must meet to obtain authorization.

We have included many remarks and an overview section in an attempt

to aid the reader.

OVERVIEW

This introductory section is intended to set out, in general

terms, the state statutory authority to regulate hazardous

wastes. This section also includes brief remarks on the Extremely

Hazardous waste/Dangerous waste ~tructure in Washington laws and

the Energy Facility Site Evaluation Council (EFSEC).

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Chapter 70.105 RCW

1. The 1976 Legislation

The Washington State Legislature enacted ch. 70.105 RCW in

1976. Laws of washington, 1975-1976 2d. Ex. Session, ch. 101.

At that time, ch. 70.105 RCW, in essence, provided authority to

regulate the transportation, storage, and disposal of "extremely

hazardous waste."

"Extremely hazardous waste" (hereafter EHW) is defined as a

subcategory of "dangerous waste" in RCW 70.105.010(6),

"Extremely hazardous waste" means any dangerous

waste which

(a) will persist in a hazardous form for several

years or more at a disposal site and which in its persistent form

(i) presents a significant environmental hazard

and may be concentrated by living organisms through

a food chain or may affect the genetic makeup of man

or wildlife, and

(ii) is highly toxic to man or wildlife

(b) if disposed of at a disposal site in such

quantities as would present an extreme hazard to man

or the environment (emphasis added.)

The more general category, "dangerous waste" (hereafter OW),

was defined but not regulated unless the particular ow in question

also exhibited the characteristics of EHW.

"Dangerous Wastes" means (sic) any discarded, useless,

unwanted or abandoned nonradioactive substances,

included but not limited to certain pesticides, or

any residues or containers of such substances which

are disposed of in such quantity or concentration as

to pose a substantial present or potential hazard

to human health, wildlife or the environment because

such wastes or constituents or combinations of such

wastes:

(a) Have short-lived, toxic properties that may

cause death, injury, or illness or have mutagenic,

teratogenic or carcinogenic properties; or

(b) Are corrosive, explosive, flammable, or may

generate pressure through decomposition or other

means.

The Washington State Department of Ecology (WDOE), in 1976,

was required to adopt regulations which would identify regulated

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wastes, i.e., those waste exhibiting the characteristics of EHW,

as defined by RCW 70.105.010(6). RCW 70.105.020(1). The Department, by implication, was required to identify dangerous wastes

(since EHW is a subcategory of DW), although only EHW was regu1ated at that time. The Department adopted regulations as

directed in 1977. See, ch. 173-302 WAc·ll

2. The 1980 Legislation

The Washington Legislature added three new sections to ch.

70.105 in 1980. Laws of washington, 1980 Session, ch. 144. (Now

codified at RCW 70.105.120, 70.105.130 and 70.105.140.) The

purpose of this legislation was to equip the Department of

Ecology with authority to administer the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et ~, in

Washington.

(1) The department is designated as the state

agency for implementing the federal resource conservation and recovery act (42 U.S.C. Sec. 6901 et seq.).

(2) The power granted to the department by this

section is the authority to:

(a) Establish a permit system for owners or

operators of facilities which treat, store, or dispose of dangerous wastes: Provided, That spent containers of pesticides or herbicides which have been

used in normal farm operations and which are not

extremely hazardous wastes, shall not be subject to

the permit system;

(b) Establish standards for the safe transport,

treatment, storage, and disposal of dangerous wastes

as may be necessary to protect human health and the

envi ronment;

(c) Establish, to implement this section:

(i) A manifest sytems to track dangerous wastes;

(ii) Reporting, monitoring, recordkeeping,

labeling, sampling requirements; and

(iii) Owner, operator, and transporter responsibili ty;

(d) Enter at reasonable times establishments

regulated under this section for the purposes of

inspection, monitoring, and sampling; and

(e) Adopt rules necessary to implement this

section. RCW 70.105.130.

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The 1980 legislation also provided authority for the Attorney

General to bring suit to enforce ch. 70.105 RCW, RCW 70.105.120,

and required that Department of Ecology rules implementing RCRA be

submitted to the legislature prior to adoption. RCW 70.105.140.

The 1980 session of the Washington Legislature adjourned

March 13, 1980. That portion of ch. 70.105 RCW which was enacted

during the 1980 session thus took effect June 12, 1980, i.e., 90 .

days after adjournment. Wash. Const. Art. II, § 41. (The

legislation was approved by the Governor on April 1, 1980.) This

effective date is, of course, well within the 90-day period

established by 42 U.S.C. 6926(c). Regulations intended to

implement RCRA, i.e., ch. 173-303 WAC, were adopted by the

Director of the Department of Ecology and took effect on

March 12, 1982.

3 •. Dangerous Waste/Extremely Hazardous

Waste Distinction

In 1976, the Legislature authorized the Department of Ecology

to adopt rules to identify both DW and EHW. RCW 70.105.020(1).

Only regulation of EHW was permitted at that time. Since many

RCRA-controlled wastes would not be EHW, the legislature, in

19.80, expanded the Department's regulatory authority to cover DW

as well.~/ (The universe of wastes new considered DW under ch.

173-303 WAC is nearly identical to that under 40 CFR 261; this

issue is considered below.) This increased authority did not

change existing statutes pertaining to EHW. Those statutes are

more stringent than RCRA in some respects, and, in order to be

consistent with the legislation, Department of Ecology rules are

more stringent than equivalent EPA regulations in some respects.

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Under 70.105.050, for example, disposal of EHW at any location

other than a site established by or for the Department on the

federal reservation at Hanford is prohibited. WDOE rules include

this limitation, WAC 173-303-140, while there appears to be no

comparable provision in 40 CFR part 260 et seq.

4. EFSEC

Dangerous waste regulation, insofar as operation of an

"energy facility" (defined at RCW 80.50.020(1)) is concerned, is

under the jurisdiction of the Energy Facility Site Evaluation

Council (EFSEC). This council, organized under Washington

statutes, ch. 80.50 RCW, is authorized to accept and act on

applications for energy facility site certification which are

submitted to it. The council's final act on an application, taken

after hearing and expert review procedures, i~ to report to the

governor the council's recommendations concerning a particular

application. If approval is recommended, the council's report

must provide a draft certification agreement. The certification

agreement must include conditions necessary to protect state and

local interests which may be affected by construction and operation of the energy facility in question. RCW 80.50.100. These

interests would include acceptable procedures to guarantee that

dangerous wastes are handled in an environmentally sound manner.

RCW 80.50.010. When executed by the governor and the energy

facility applicant, the certification agreement stands in lieu

of any other state permit or "approval which would otherwise be

required. RCW 80.50.120. EFSEC has authority to adopt rules,

RCW 80.50.040(1), although dangerous waste handling is not a

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subject covered in any detail under rules adopted to date.

See, e.g., WAC 463-42-490.

I. IDENTIFICATION AND LISTING

State statutes and regulations provide control over a universe of hazardous waste generated, transported, treated, stored,

and disposed of in the state at the time of program approval

which is nearly identical to that which would be controlled by

the Federal program under 40 CFR 261.

Citation of Laws: RCW 70.105.020(1) (Enacted 1976)

RCW 70.105.130 (1980)

WAC 173-303-070 (Adopted 1982)

WAC 173-303-071 (1982)

WAC 173-303-075 (1982)

WAC 173-303-080 (1982)

WAC 173-303-081 (1982)

WAC 173-303-082 (1982)

WAC 173-303-083 (1982)

WAC 173-303-084 (1982)

WAC 173-303-090 (1982)

WAC 173-303-100 (1982)

WAC 173-303-101 (1982)

WAC 173-303-102 (1982)

WAC 173-303-103 (1982)

WAC 173-303-9901 (1982)

WAC 173-303-9902 (1982)

WAC 173-303-9903 (1982)

WAC 173-303-9904 (1982)

WAC 173-303-9906 (1982)

WAC 173-303-9907 (1982)

Remarks: Washington statutes which authorize dangerous waste

regulation do not specify that dangerous wastes shall be designated through any particular procedure. The statutes require that

rules be adopted, RCW 70.105.020(1), but whether designation

must be by list (for example) was left to the discretion of the

Department of Ecology. Whatever procedure was adopted by the

Department, the key issue was whether a waste exhibited the

characteristics of DW or EHW, as defined in RCW 70.105.010(6).

If so, then that waste was regulated.

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.' .

The procedure used to designate solid waste as dangerous

waste under Washington law is identia1 to 40 CFR 261 with respect

to dangerous waste sources, WAC 173-303-082 and 173-303-9904, discarded chemical products, WAC 173-303-081 and 173-303-9903, and

dangerous waste characteristics. WAC 173-303-090. The procedure

used in Washington to designate dangerous wastes differs somewhat

from 40 'CFR 261 in the treatment of dangerous waste mixtures, WAC

173-303-084 and in designation by dangerous waste criteria, WAC

173-303-101 through 173-303-103. More wastes may be subject to

regulation under Chapter 173-303 WAC than are regulated by EPA as

a result of these differences.

A. Mixtures

(See discussion below).

Under WAC 173-303-084, a waste mixture is a waste which has

not been designated as a Discarded Chemical Product, a Dangerous

Waste Source or an Infectious Dangerous Waste. Dangerous waste

mixtures are subject to regulation as mixtures if, generally, they

exhibit specified levels of toxicity, WAC 173-303-084(5), persistence, WAC 173-303-084(6), or concentrations of carcinogens, WAC

173-303-0B4( 7). Even if a waste mixture does not meet the standards

in WAC 173-303-084 it may be regulated if it exhibits any of the DW

characteristics. WAC 173-303-070(3) (a).

8. Criteria

A dangerous waste may be designated by criteria in lieu of

designation by list. WAC 173-303-070(3) (b), 173-303-9901, 173-303-

9902. The criteria include toxicity, WAC 173-303-101, persistence,

WAC 173-303-102 and concentration of carcinogens, WAC 173-303-103.

In addition, the dangerous waste characteristics, i.e., ignitabi1ity, corrosivity, reactivity, and EP toxicity, must be analyzed

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.' .

during the designation-by-criteria procedure. WAC 173-303-070-

(3)(b). Whether to designate solid wastes by criteria or by

list is left to the generator's discretion. WAC 173-303-070(3).

The Department of Ecology may order a generator to check his

wastes against the criteria in certain situations. WAC 173-303-

070(4). A generator of wastes designated by list is required to

designate by characteristic or criteria or both if he has knowledge

that his wastes exhibit any DW characteristics or meet any DW

criteria. WAC 173-303-070(5).

Vse of the criteria designation procedure is not expected to

permit wastes regulated under 40 CFR 261 to escape regulation under

ch. 173-303 WAC. The dangerous waste lists (sources and discarded

chemical products) and characteristics adopted by EPA have been

adopted by the Department of Ecology. A generator of a listed waste

could, under WAC 173-303-070(3), decide to designate by criteria

instead of by list. This tactic would not cause regulation inconsistent by EPA's approach; if the waste met any of the criteria

(which include characteristics adopted by EPA at 40 CFR 261.20), then

it is regulated. If the wa~~e does not meet any criteria, then it

is not, in fact, a threat to health or the environment and should

not be regulated as if it was hazardous. Moreover, if a generator

can establish that a waste designated by list does not meet any of

the criteria, then he may be able to petition successfully for an

exemption for regulation. WAC 173-303-910(3). This WDOE petition

procedure is comparable to the EPA approach published at 40 CFR

260.22.

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[DRAFT]
II. STANDARDS FOR GENERATORS OF HAZARDOUS WASTE

A. State statutes and regulations provide coverage of all

the generators of hazardous waste which is regulated under the

State program.

Citation: RCW 70.105.130 (1980)

WAC 173-303-170 (1982)

Remarks: Certain categories of wastes are categorically

excluded from regulation under ch. 173-303 WAC. See WAC 173-303-

071. Generators of excluded wastes are thus unregulated under

ch. 173-303 WAC, insofar as an excluded waste is concerned. The

state categorical exclusions parallel 40 CFR 261.4. Small quantity

generators are also excluded from regulation; the maximum quantities thus excluded are 400 Ib-DW and 2.2 Ib-EHW per month or per

batch.

B. State statutes and regulations require all generators

of waste to determine whether their waste is hazardous.

Citation: RCW 70.105.130 (1980)

WAC 173-303-170(1) (1982)

Remarks: As a general rule, all generators must determine

whether their waste is dangerous. A generator of solid waste may,

however, apply to the Department of Ecology for a "certificate 'of

designation." WAC 173-303-075. A certificate of designation

amounts basically to an official statement by the Department that

a particular waste is or is not designated as a dangerous waste

under ch. 173-303 WAC. WAC 173-303-075(3). A generator seeking

a certificate must submit an application in a form prescribed

by the Department. WAC 173-303-075(4).1/ This application must,

of course, include data sufficient to accurately designate the

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...

waste involved according to WAC 173-303-080 through 173-303-103.

WAC l73-303-075(4)(b). If a certificate of designation is issued

which states that a waste is designated, the generator must comply

with all pertinent requirements of ch. 173-303 WAC. WAC 173-303-

075(2)(c). A generator must comply with applicable requirements of

ch. 173-303 WAC while an application for a certificate is pending.

WAC 173-303-075(2) (d).

C. State statutes and regulations require all generators

covered by the state program to comply with reporting and recordkeeping requirements substantially equivalent to those found at

40 CFR 262.40 and 40 CFR 262.41.

Citation: RCW 70.105.130(2) (c)(ii) (1980)

WAC 173-303-210 (1982)

WAC 173-303-220 (1982)

D. For hazardous wastes that are accumulated by such generators for short periods of time prior to shipment, state

statutes and regulations require that such generators accumulate

such wastes in a manner that does not present a hazard to human

health or the environment.

Citation: RCW 70.105.130(2) (1980)

WAC 173-303-200 (1982)

E. Respecting international shipments, state laws and regulations provide requirements which are substantially equivalent

to those at 40 CFR 262.50, except that advance notification of

international shipment, as required by 40 CFR 262.50(b)(1), shall

be filed with the Administrator.

Citation: RCW 70.105.130 (1980)

WAC 173-303-230(1) (1982)

WAC 173-303-230(2) (1982)

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F. State statutes and regulations require that such generators of hazardous waste who transport (or offer for transport)

such hazardous waste off-site use a manifest system that ensures

that inter- and intrastate shipments of hazardous waste are

designated for delivery and, in the case of intrastate shipments,

are delivered only to facilities that are authorized to operate

under an approved state program or the federal program.

Citation: RCW 70.105.130(2) (c) (1980)

WAC 173-303-141 (1982)

WAC 173-303-180 (1982)

G. The State manifest system requires that:

1. The manifest itself identify the generator, transporter, designated facility to which the hazardous wastes will be

transported, and the hazardous waste being transported.

Citation: RCW 70.105.130(2) (1980)

WAC 173-303-180(1) (1982)

2. The manifest accompany all wastes offered for transport except in the case of shipments by rail or water specified in

40 CFR 262.23(c) and 263.20(e).

Citation: RCW 70.105.130(2) (c) (1980)

WAC 173-303-180(3) (1982)

3. Shipments of hazardous waste that are not delivered

to a designated facility are either identified and reported by

the generator to the state in which the shipment originated or

are independently identified by the state ~n which the shipment

originated.

Citations: RCW 7 0 . 1 05 . 1 30 ( 2) (c) (19 80 )

WAC 173-303-220(2) (1982)

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· ..

Remarks: Exception reports, ordinarily, must be submitted

if the generator has not received a signed copy of a manifest

within 45 days after the date the waste was accepted by the

initial transporter. The Department reserves the right, however,

to require a generator to submit exception reports in less than

45 days if it formally finds that the generator frequently or

persistently endangers public health or the environment through

improper waste shipment pract ices. WAC 173-303-220( 2) (d). A

generator subject to an accelerated reporting period would have

to be notified of this finding by order.

4. There is notification of undelivered interstate

shipments to the state in which the facility designated on the

manifest is located and to the state in which the shipment may

have been delivered (or EPA for unauthorized states).

Remarks: This notice is not required by regulations adopted

to date by the Department of Ecology.

III. STANDARDS FOR TRANSPORTERS OF HAZARDOUS WASTE

A. State statutes and regulations provide coverage of all

the transporters of hazardous waste which is regulated under the

state program.

Citation: RCW 70.105.130 (1980)

WAC 173-303-240 (1982)

B. State statutes and regulations require all transporters

covered by the state program to comply with recordkeeping requirements substantially equivalent to those found at 40 CFR 263.22.

Ci ta tions: RCW 70.105.130 (1980)

WAC 173-303-260 (1982)

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I DRAFT]
C. State statutes and regulations required such transporters of hazardous waste to use a manifest system that ensures

that inter- and intrastate shipments of hazardous waste are

delivered only to facilities that are authorized under an

approved state program or federal program.

Citations: RCW 70.105.130 (1980)

WAC 173-303-141 (1982)

WAC 173-303-180 (1982)

WA C 1 7 3- 303- 250 (19 82)

Remarks: A person transporting dangerous wastes "on-site"

(defined in WAC 173-303-040(58)) is not required to use the

manifest system. WAC 173-3-3-240(4).

Department of Ecology regulations direct that any person who

has dangerous waste intended for treatment, storage, or disposal

(TSD) may offer this waste only to a facility permitted under WAC

173-303-800 through 173-303-845. WAC 173-303-141. This language

does not apply to shipment of wastes to a facility that is outside

the jurisdiction of the state of Washington, e.g., a TSD facility

located in Oregon. washington law thus does not require that

out-of-state shipments of dangerous waste be delivered only to

facilities approved under the federal program or a state program.

D. State statutes and regulations require that such transporter carry the manifest with all shipments except in the case

of shipments by rail or water specified in 40 CFR 263.20(e).

Citations: RCW 70.105.130(2) (c) (1980)

WAC 173-303-250(3) (1982)

WAC 173-303-250(7) (1982)

WAC 173-303-250(8) (1982)·

E. For hazardous wastes that are discharged in transit,

state statutes and regulations require such transporters to

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· .. .......:-'

notify appropriate state, local, and federal agencies of the

discharges and to clean up such wastes or to take action so that

such wastes do not present a hazard to human health or the

environment. Such requirements are substantially equivalent to

those found at 40 CFR 263.30 and .31.

Citations: RCW 70.105.130 (1980)

WAC 173-303-145 (1982)

WAC 173-303-270 (1982)

Remarks: The Department of Ecology regulations may cover

more spill or discharge situations than are presently covered by

4~ CFR 263.30 and 40 CFR 263.31. WAC section 173-303-145(1)

applies when any dangerous waste" •• or any material having

the properties of a dangerous waste, as described WAC 173-303-080

through 173-303-103 ••• " is spilled or discharged. The basic

idea here is that a hazardous material spilled in transport will

be treated as a waste unless it is recovered for reuse.

IV. STANDARDS FOR STORAGE, TREATMENT AND DISPOSAL FACILITIES

State statutes and regulations provide standards applicable

to storage, treatment, and disposal facilities which are substantially equivalent to 40 CFR 265. State law prohibits the operation

of facilities not in compliance with such standards. These

standards include:

A. Preparations for and prevention of releases of hazardous waste controlled by the state and contingency plans and

emergency procedures to be followed in the event of such

hazardous waste.

Citations: RCW 70.105.130 (1980)

WAC 173-303-340 (1982)

WAC 173-303~350 (1982)

WAC 173-303-400 (1982)

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Remarks: Facility standards equivalent to 40 CFR 265

parts Cand D appear in WAC 173-303-340 and 173-303-350 as standards applicable to all owners and operators of TSD facilities.

These WAC sections are adopted by reference as Interim Status

Facility Standards. WAC 173-303-400(3) (a).

The state Interim Status Facility Standards include four

categorical exclusions. WAC 173-303-400(2) (c). These exclusions

are consistent with RCRA Interim Status Standards, 40 CFR 265.1(c),

although the state rules do not expressly exclude as many TSD

·s"{tuations. E.g., 40 CFR 265.1(c)(5).

B. Closure 'and post-closure requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-400 (3)

Remarks: Interim Status Standards published at 40 CFR 265

Subparts G and H have been adopted by reference as washington

rules. WAC 173-303-400(3). This adoption by reference is limited

to existing federal rules; amendments to federal rules enacted after

adoption of the state rules, Le., after February 10, 1982, would

not be incorporated into Washington rules without further action by

the Department of Ecology. See, State v. Dougal, 89 Wn.2d 118

(1977) •

In~erim status facilities are required to comply with WAC 173-

303-400(3).· WAC 173-303-400(2), 173-303-815(2)(a).

C. Ground water monitoring.

Citations: RCW 70.105.130 (1980)

WAC 173-303-400( 3) (1982)

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Remarks: Interim Status Standards published at 40 CFR 265

Subpart F have been adopted by reference with very minor changes.

WAC l73-303-400(3)(b). This adoption is only effective for

existing federal rules, as noted above.

The Department of Ecology has authority under ch , 90.48 RCW

to order ground water monitoring or remedial action on a case-bycase basis. RCW 90.48.120. Such an order must be predicated on a

finding by the Department that a person is violating or is about

to violate ch. 90.48 RCW. A finding that, e.g., a TSD operator

is allowing harmful chemical contamination of ground water could

serve as the basis for an order under RCW 90.48.120. Any such

order is appealable. See ch. 43.2lC RCW and RCW 34.04.130.

D. Security to prevent unknowing and unauthorized access to

the facility.

Citations: RCW 70.105.130 (1980)

WAC 173-303-310 (1982)

E. Facility personnel training.

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1982)

F. Inspection, monit0~ing, recordkeeping, and reporting.

Citations: RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

G. Compliance with the manifest system including the

requirement that the facility owner or opertor or the state in

which the facility is located must return a copy of the manifest

to the generator or to the state in which the generator is

located indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (1982)

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H. Other facility standards to the extent that they are

included in 40 CFR 264, 265, and 266.

Citations: RCW 70.105.130 (1980)

WAC 173-303-280 (1982)

WAC 173-303-290 (1982)

WAC 173-303-300 (1982)

WAC 173-303-310 (1982)

WAC 173-303-320 (1982)

WAC 173-303-330 (1982)

WAC 173-303-340 (1982)

WAC 173-303-350 (1982)

WAC 173-303-360 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-303-395 (1982)

WAC 173-303-400 (1982)

WAC 173-303-500 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 173-303-630 (1982)

WA C 1 7 3- 30 3- 640 (19 8 2 )

WAC 173-303-650 (1982)

WAC 173-303-660 (1982)

WAC 173-303-670 (1982)

The Department of Ecology rules incorporate provisions nearly

identical to 40 CFR 264 Subparts B through o. See WAC 173-303-

280 through 173-303-395, and WAC 173-303-610 through 173-303-670.

Much of 40 CFR Part 265, i.e., Subparts F through R, has been

adopted by reference with minor changes. WAC 173-303-400. Those

subparts of 40 CFR Part 265 which were not adopted by reference

in WAC 173-303-400, i.e., Subparts A through E, have been incorporated elsewhere in nearly identical form. See, WAC 173-303-280

through 173-303-395.

v. INSPECTIONS

State law provides authority for officers engaged in comp1iance evaluation activities to enter any conveyance, vehicle,

facility, or premises subject to regulation or in which records

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relevant to program operation are kept in order to inspect,

monitor, or otherwise investigate compliance with the state

program including compliance with permit terms and "conditions and

other program requirements. (States whose law requires a search

warrant prior to entry conform with this requirement.)

Citations: RCW 70.105.130 (1980)

RCW 90.48.090 (1945)

WA C 173- 30 3- 810 ( 10 ) (1982 )

Remarks: The Department is granted authority to enter "establishments regulated under this section for the purposes of inspection, monitoring, and sampling ..• " by RCW 70.105.130(d). The

"establishments" referred to would include any dangerous waste

generator, transporter, or TSD facility subject to regulation under

RCW 70.105.130 and ch. 173-303 WAc.if In addition, the department

and its agents have authority to enter on property in order to

investigate water pollution or possible water pollution. RCW

90.48.090. These statutory authorities are limited by the requirement to obtain a search warrant unless entry is obtained by consent. Any TSD facility permitted under chapter 173-303 WAC must

be open to inspection by representatives of the Department as a

condition of holding a permit. WAC 173-303810(10).

VI. ENFORCEMENT REMEDIES

State statutes and regulations provide the following:

A. Authority to restrain immediately by order or by suit

in state court any person from engaging in any unauthorized

activity which is endangering or causing damage to public health

or the environment.

Citation: RCW 70.105.120 (1980)

-20-
B. Authority to sue in courts of competent jurisdiction to

enjoin any threatened or continuing violation of any program

requirement.

Citation: RCW 7 0 . 1 05 . 1 20 (19 8 0 )

C. Authority to assess or sue to recover in court civil

penalties in at least the amount of $1,000 per day for any

program violation or seek criminal remedies including fines in at

least the amount of $1,000 per day for any program violation.

Citations: RCW 70.105.080 (1976)

RCW 70.105.090 (1976)

Remarks: Civil penalties in amounts up to $1,000 per day

may be assessed for any violation of RCW 70.105.010 through

70.105.080 or ch. 173-303 WAC. RCW 70.105.080. A penalty, once

assessed, may be remitted or mitigated by the Department of

Ecology upon timely application made by the person penalized.

Whether a request for remission or mitigation will be granted is

decided by the Department in its discretion and may be subject to

such terms as will serve the purpose of ch. 70.105 RCW. Any

penalty imposed is subject to review by th~ Pollution Control

Hearings Board in accordance with ch. 43.21B RCW. RCW 70.105.080.

Criminal penalties may be imposed for violation of RCW 70-

.105.010 through 70.105.090 or ch. 173-303 WAC. RCW 70.105.090.

A scheme of enforcement authorities such as included in

RCW 70.105.080 and 70.105.090 has been upheld against constitutional challenge. Yakima County Clean Air Authority v. Glascam

Builders, Inc., 85 Wn.2d 255 (1975); Barry and Barry v. Department

of Motor Vehicles, 81 Wn.2d 155 (1972); Rody v. Hollis, 81 Wn.2d

88 (1972).

-21-
-,

VII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS

State laws and regulations provide for public participation

in the State enforcement process by providing either:

A. Authority which allows intervention as of right in any

civil or administrative action to obtain the remedies specified

in VI above by any citizen having an interest which is or may be

adversely affected; or

B. Assurances that the state agency or enforcement

authority will:

(1) Investigate and provide written response to all citizen

complaints duly submitted.

(2) Not oppose intervention by any citizen where permissive

intervention may be authorized by statute, rule, or regulation;

and

(3) Publish and provide at least 30 days for public comment

on any proposed settlement of a state enforcement action, except

in a case where a settlement requires some immediate action

(e.g., cleanup) which if otherwise delayed could result in

substantial damage to either public health or the environment.

Citation: RCW 70.105.130 (1980)

WAC 173-303-900 (1982)

Remarks: The Department of Ecology does not have the

authority to guarantee intervention as of right in civil or

administrative actions to remedy violations of ch. 70.105 RCW or

ch. 173-303 WAC. As noted above, the Department's ability to

assess civil penalties against violators is limited by the violator's right to appeal to the Pollution Control Hearings Board

-22- [ DRAFT]
(PCHB). RCW 70.105.080. The PCHB is independent of the Department of Ecology. See ch. 43.31B RCW. The peHB hearing rules

include a provision incorporating by reference the Civil Rules

for Superior Court. WAC 371-08-031(2). Civil Rule 24(a), which

governs intervention as a matter of right, states:

(a) Intervention of Right. Upon timely application anyone shall be permitted to interene in an

action: (1) when a statute confers an unconditional

right to intervene; or (2) when the applicant claims

an interest relating to the property or transaction

which is the subject of the action and he is so

situated that the disposition of the action may as

a practical matter impair or impede his ability to

protect that interest, unless the applicant's

interest is adequately represented by existing

parties.

Civil Rule 24 also limits the Department's power to guarantee

intervention in a court action brought by the Attorney General

under RCW 70.105.120.

Intervention as of right under CR 24(a)(2) has been allowed

to persons "who feel themselves aggrieved," Loveless v. Yantis, 82

Wn.2d 754, 758 (1973), and to an organization whose members are

injured. Id. This standard does not provide exactly the protection required in 40 CFR 123.128(f)(2) (i), e.g., an application to

intervene may be denied because the applicant's interest is adequately represented by existing parties. Moreover, the Department

has no authority to decide the issue; the PCHB or superior court

ruling would control their respective jurisdictions.

While unable to guarantee intervention as of right, the

Department has, by regulation, expressed its intent to " •.foster

public awareness, information and consultation, and to respond

-23-
actively to public concerns. " WAC 173-303-900. This commitment does respond to the requirements in 40 CFR l23.128(f)(2) (ii)

albeit without reference to the exact language of that regulation.

VIII. AUTHORITY TO SHARE INFORMATION WITH EPA

State statutes and regulations provide authority for any

information obt~ined or used in the administration of the State

program to be available to EPA upon request without restriction.

Citation: Ch. 42.17 RCW (1973)

RCW 43.21A.160 (1970)

Remarks: The Public Disclosure Act, (ch. 42.17 RCW) provides,

in part, that each agency of the State of Wshington shall make

available for public inspection and copying all public records.

RCW 42.17.260. A "public record" includes:

" .any writing containing information relating to the conduct of government on the performance

of any governmental or proprietary function prepared,

owned, used, or retained by any 'state or local agency

regardless of physical form or characteristics."

RCW 42.17.020(26).

"Writing" is defined to include every means of recording any form

of communication or representation. RCW 42.17.020(28).

The Department's considerable authority to share information

is slightly limited by a procedure available to enjoin examination of any specific public record. RCW 42.17.330. This procedure requires a motion and affidavit in superior court. The

court may enjoin examination if it finds that the examination

"would clearly not be in the public interest and would subs tantially and irreparably damage vital governmental functions."

RCW 42.17.330. This legal standard is clearly quite stringent.

-24-
The Department of Ecology enabling act, ch. 43.21A RCW,

authorizes a procedure to insure that information on unique

productive processes may be kept confidential if disclosure would

hurt the owner's competitive position. RCW 43.21A.160. Whether

confidentiality is ordered lies in the discretion of the

Director of the Department.

IX. AUTHORITY OVER INDIAN LANDS

An analysis of this State's authority over activities on

"Indian lands" will be submitted under separate cover.

X. STATE PERMITTING REQUIREMENTS

A. State statutes and regulations prohibit the construction

of new facilities or the operation of existing facilities engaged

in the storage of hazardous waste in containers or in the storage or

treatment of hazardous waste in tanks, surface impoundments, or

waste piles without a permit [and/or the State allows the above

named facilities which would qualify for interim status under the

Federal program to remain in operation pending permit action if they

comply with State facility standards substantially equivalent to EPA

interim status standards at 40 CFR Part 265 (See 40 CFR l23.l29(b))].

Citation: RCW 70.105.130 (1980)

WAC 173-303-400 (1982)

WAC 173-303-800 (1982)

WAC 173-303-805 (1982)

WAC 173-303-815 (1982)

Remarks: The owner or operator of any facility that treats,

stores or disposes (TSD) of dangerous waste or extremely hazardous

waste must obtain a permit in accordance with WAC 173-303-800

through l73-303-845.~/ This requirement would apply to a

facility engaged in storage or treatment of dangerous waste in

containers, tanks, surface impoundments or waste piles.

-25-
Physical construction of a new TSD facility may not begin

until the owner or operator has submitted Parts A and B of the

permit application and has received a permit. WAC 173-303-815(3).

The owner or operator of a new facility under construction

prior to adoption of Chapter 173-303 WAC, Le., prior to February

10, 1982, may continue with construction but a permit application

must be submitted by May 11, 1982, i.e., 90 days after adoption

of Chapter 173-303 WAC. WAC 173-303-815(3) (c).

A facility operating under interim status gained under RCRA

is deemed to have interim status under Chapter 173-303 WAC, provided

that state interim status facility standards, see WAC 173-303-400,

are met. WAC 173-303-815(2) (a).~ State interim status facility

standards are substantially equivalent to 40 CFR 265.

The owner or operator of a TSD facility which receives

wastes regulated by Chapter 173-303 WAC but not regulated under

40 CFR 261 and which is in existence 2/ March 12, 1982 (the

effective date of Chapter 173-303 WAC) may obtain an interim

status permit. In order to qualify the owner or operator

must submit notice, WAC 173-303-060, by May 11, 1982 (90

days after promulgation) and submit permit application Part

A by August 9, 1982 (180 days after promulgation). WAC

173-303-815(2). TSD facilities receiving wastes regulated

under Chapter 173-303 WAC but not regulated under 40 CFR 261

must also comply with interim status standards, WAC 173-303-

400, by August 9, 1982. WAC 173-303-400(2) (b).~/

"':'26-
.~.

B. State statues and regulations require that facilities that would be deemed to have a Federal permit by rule

under 40 CFR 122.26 must obtain permits or are otherwise

subject to fully enforceable State standards which are substantially equivalent to Federal standards at 40 CFR 122.26.

Citation: RCW 70.105.130 (1980)

WAC 173-303-805(1) (1982)

Remarks: The relevant state rule, WAC 173-303-805(1), is

essentially identical to 40 CFR 122.26, except that totally

enclosed treatment facilities and elementary neutralization

or wastewater treatment units are also deemed to have a permit

by rule.

C. State statues and regulations which allow exemptions from State permitting requirements do not apply to

persons other than those excluded by the Federal program at

40 CFR l22.2l(d)(2).

Remarks: Washington statutes and regulations do not

include any specific exemptions from TSD facility permitting

requirements which are not within the exclusions in 40 CFR

l22.2l(d)(2).

D. State statutes and regulations require that permits

be effective for fixed terms no greater than 10 years.

Citations: RCW 70.105.130 (1980)

WAC 173-303-825(2) (1982)

E. State statutes and regulations require that all

permits contain fully enforceable conditions that are

sub~tantially equivalent to those at 40 CFR 122.7, 122,11,

122.28, and 122.29 •

[ DRAFT 1

-27-
Citations: RCW 70.105.130 (1980)

WAC 173-303-810 (1982)

F. Where State statutes and regulations authorize

permit variances, permits are required to contain enforceable requirements that compliance be attained in fixed

schedules and as soon as possible. Schedules of compliance

are required where immediate compliance is not required.

Remarks: washington statutes and regulations do not

include any provisions authorizing permit variances. Schedules of compliance are provided for in WAC 173-303-830(6).

G. State statutes and regulations provide that where

permits are transferred, the transferee must comply with

all requirements of the permit and the State must be

notified in advance of the transfer.

Citations: RCW 70.105.130 (1980)

WAC 173-303-810(14)(c) (1982)

WAC 173-303-830(2) (1982)

H. State statutes and regulations authorize modification

of permits where alterations are made to a facility or to activities at a facility or where new information is received.

Citations: RCW 70.105.130 (1980)

WAC 173-303-830(3) (1982)

I. State statutes and regulations authorize termination

of permits for cause, including noncompliance with the permit,

misrepresentation of or failure to disclose all relevant facts

during permit issuance or the permit term and where the activity

endangers human health or the environment and can only be acceptably regulated by termination.

Citations: RCW 70.105.130 (1980)

WAC 173-303-820(4)

WAC 173-303-825(4)

-28-
Remarks: Section WAC 173-303-820(4) authorizes termination

of interim status permits for cause. This section is subs tantially similar to 40 CFR l22.23(e) dealing with termination of

interim status•. Section WAC 173-303-825(4), authorizing termination of final permits for cause, is identical to 40 CFR l22.l6(a).

J. State statutes and regulations require that a facility

operating in interim status amend its application where changes

occur in:

(i) the wastes handled at the facility;

(ii) processes and activities at the facility; and

(iii) facility ownership or operational control.

Citations: RCW 70.i05.130 (1980)

WAC 173-303-820(3) (1982)

K. If the state allows the use of emergency permits, state

statutes and regulations only allow suchg temporary emergency

permits in cases of imminent and substantial endangerment to human

health similar to those at 40 CFR 122.27.

Citations: RCW 70.105.130 (1980)

WAC 1 73- 3 03- 8 05 ( 4) ( 19 82)

XI. STATE PERMITTING STANDARDS

State statutes and regulations require.that all permits

issued by the state require compliance with standards subs tantially equivalent to Federal standards at 40 CFR Part 264 Subparts A through L. These standards include:

A. Preparedness for and prevention of releases of hazardous

waste controlled by the state, and contingency plans and emergency

procedures to be followed in the event of a release of such

hazardous waste.

-29-
Citations: RCW 7 0 . 1 05 . 1 30 (19 8 0 )

WAC 173-303-340 (1982)

WAC 173-303-350' (1982)

WAC 173-303-360 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

B. Security to prevent unknowing and unauthorized access

to the facility.

Citations: RCW 70.105.130 (1980)

WAC 173-303-310 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

C. Facility personnel training.

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

D. Compliance with the manifest system including the

requirement that the facility owner or operator or the state in

which the facility is located must return a copy of the manifest

to the generator or to the state in which the generator is located

indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

E. Closure and postc1osure care and financial requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 173-303-800( 4) (1982)

F. Inspections, monitoring, recordkeeping, and reporting by

facility personnel.

-30-
Citations: RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

G. Use and management of containers.

H. Requirements for tanks.

Citations:

Citations:

RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-630 (1982)

I WAC 173-303-800(4) (1982)

RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-640 (1982)

WAC 173-303-800( 4) (1982)

DRAFT

I. Requirements for surface impoundments.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-650 (1982)

WAC 173-303-800(4) (1982)

J. Requirements for waste piles.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-660 (1982)

WAC 173-303-800(4) (1982)

XI I. 'STATE PERMITTING PROCEDURES

A. State statutes and regulations require that all new

facilities for the storage of hazardous waste in containers.or

for hazardous waste storage or treatment in tanks, surface

impoundments or waste piles obtain a permit prior to beginning

physical construction of the facility. For existing facilities

legally in operation, the state requires completion of the permit

application process within a reasonable time.

Citations: RCW 70.105.130 (1980)

. WAC 173-303-815 (1982)

-31-
Remarks: Permit applications for new TSD facilities must

be submitted to the Department of Ecology at least 180 days before

physical construction begins. WAC 173-303-815(3) (c). A permit

application covering a new facility for which construction began

prior to adoption of ch. 173-303 WAC must be submitted by May 11,

1982 (90 days after adoption of ch. 173-303 WAC).

The owner or operator of a TSD facility existing on March 12,

1982 (effective date of ch. 173-303 WAC) may obtain an interim

status permit. (Facilities obtaining interim status under RCRA

are deemed to have interim status under ch. 173-303 WAC). Application for interim status under ch. 173-303 mtist be submitted by

August 10, 1982 (180 days after promulgation). WAC 173-303-815-

(2)(b). The owner or operator of an existing TSD facility must

submit permit application Part B within six months after written

request from the department. WAC 173-303-815(2) (d).

B. State statues and regulations require that permit app1ications contain information that is substantially equivalent to

information required at 40 CFR 122.4, 122.24 and 122.25.

Ci ta t ions : RCW 7 0 • 105 . 1 30

WAC 173-303-815

Remarks: The department, under WAC 173-303-815(8), may

require that Part B permit applications state all necessary

information including that required under 40 CFR 122.25.

C. State statutes and regulations which provide for the

protection of confidential information do not allow the name and

address of the permit applicant or permittee to be entitled to

such treatme nt.

-32-
~"

Remarks: Access to permit information is covered generally

in remarks above. See, section VIII Authority to Share Information with EPA. As stated there, a procedure in superior court may

be invoked to enjoin examination of any "public record." The

court may enjoin examination if it finds that the examination

"would clearly not be in the public interest and would subs tantially and irreparably damage vital governmental functions." RCW

42.17.330. Whether disclosure of the name and address of a permit

applicant or permittee would ever be enjoined cannot now be

predicted with absolute certainty, although the legal standard

in RCW 42.17.330 is clearly quite stringent.

D. State statutes and regulations require that permit

applications be signed by persons authorized to bind the owner and

operator of the facility undQr state law and contain a certification that the information contained in the application is true and

accurate.

Citations: RCW 70.105.130 (1980)

WAC 173-303-810(12) (1982)

WAC 173-303-810 (13) (1982)

E. State statutes and regulations require that the state

make available for public comment prior to permit issuance information substantially equivalent to the required at 40 CFR 124.6 and

124.8. That information may be contained in a draft permit.

Ci ta tions: RCW 70.105.130 (1980)

WAC 173-303-840 (1982)

F. State statutes and regulations require that notice

be issued to the public of preparation of the document containing

the information at XII E. or draft permit and of scheduling of a

public heari ng.

-33-
Citations:

,,--,

RCW 70.105.130 (1980)

WAC 173-303-840(3) (1982)

G. State statutes and regulations require that the public

notice contain information substantially equivalent to that in 40

CFR 124. 10 ( d ) ( 1) ( i ) - ( v) and (i x ), 1 24 . 10 ( d ) ( 2) and 124. 1 0 ( e ) .

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(4) (1982)

H. State statutes and regulations require that the notice

be published in major local newspapers and broadcast over local

radio stations and be sent to each unit of local government having

jurisdiction over the area in which the proposed facility seeks to

locate and other state agencies with authority over facility

construction or operation.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(3) (1982)

I. State statutes and regulations allow any interested

person to submit written comments.

Citations: RCW 70.105.130 (1980)

WAC 173- 3 03- 840 ( 4) (b) (1982)

J. State statutes and regulations provide for informal

public hearings if the state receives written opposition and a

request for a hearing within 45 days of publication of the notice.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(5) (1982)

K. State statutes and regulations require that such public

hearings allow the presentation of written and oral comments and

be conducted in a manner substantially equivalent to the requirements of 40 CFR 124.17.

Citations: RC W 7 0 . 105 . 1 30 (1980 )

WAC 173-303-840(5) (1982)

WAC 173-303-840(9) (1982)

-34-

[ DRAfT]
L. State statutes and regulations require that written

responses to significant comments be made available to the public.

Citations: RCW 70.105.130 (1980)

WAC 1 73- 3 0 3- 840 ( 9) (c) (1982 )

XIII. STATE PERMITTING REQUIREMENTS - INCINERATOR FACILITIES

State atatutes and regulations prohibit the operation of

incinerator facilities that treat hazardous waste if such facilities do not have a permit [and/or the state allows such facilities

which would qualify for interim status under the Federal program

to remain in operation pending permit action if they comply with

state facility standards substantially equivalent to EPA's interim

standards at 40 CFR Part 265].

Citations: RCW 70.105.130 (1980)

WAC 173-303-400 (1982)

WAC 173-303-800 (1982)

WAC 173-303-805 (1982)

WAC 173-303-815 (1982)

Remarks: An incinerator facility that treats, stores, or

disposes of dangerous waste must be permitted in accordance with

WAC 173-303-800 through 173-303-845. This permitting system

is considered remarks supra, section X. State Permitting

Requirements.

XIV. STATE PERMITTING STANDARDS - INCINERATOR FACILITIES

State statutes and regulations require that all incinerator

permits issued by the state require compliance with standards

substantially equivalent to federal standards at 40 CFR 264

Subparts A-H as they apply to incinerators and Subpart O. These

standards include:

-35-
A. Preparedness for and prevention of releases of hazardous

waste controlled by the state and contingency plans and emergency

procedures to be followed in the event of a release of such

hazardous waste.

Citations: RCW 70.105.130 (1980)

WAC 173-303-340 (1982)

WAC 173-303-350 (1982)

WAC 173-303-360 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800( 4) (1982)

Remarks: An incinerator facility that treats, stores, or

disposes of dangerous waste is a TSD facility, and as such,

will be subject to applicable facility standards even though a

pertinent facility standard, e.g., WAC 173-303-340, does not

expressly mention incinerators. WAC 173-303-800(4). Similarly,

a final TSD facility permit covering an incinerator must require

compliance with relevant facility standards even if incinerators are not expressly mentioned in a particular standard.

WAC 173-303-600.~/

B. Security to prevent unknowing and unauthorized access

to the facility.

Citations: RCW 70.105.130 (1980)

WAC 173-303-310 (1982)

WAC 173-303-600 (1982)

WAC 173- 303- 800 ( 4) (1982)

C. Facility personnel training.

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

D. Compliance with the manifest system including the

requirement that the facility owner or operator, or the state in

-36-
·"'-\

. ,.:

which the facility is located, must return a copy of the manifest

to the generator or to the state in which the generator is located

indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

E. Closure and postclosure care and financial requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 17 3-303-800( 4) (1982)

F. Inspections, monitoring, record keeping, and reporting

by facility personnel.

G. Requirements for incinerators.

RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-300-600 (1982)

WAC 173-300-800(4) (1982)

Citations:

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-670 (1982)

WAC 173-303-800(4)' (1982)~

XV. STATE PERMITTING PROCEDURES - INCINERATOR FACILITIES

,

State statutes and regulations set requirements and procedures for incinertor permitti~g that are the same as those

described at Section XII above, with the following additions:

A. State statutes and regulations require that applications for incinerator permits contain information substantially

equivalent to that required at 40 CFR 122.25(b) (5) (i)-(iii), as

well as other information at 40 CFR 122.4, 122.24 and 122.25.

-37-
Citations: RCW 7 0 . 105 . 1 30 (19 80)

WAC 173-303-670( 2) (1982)

WAC 173-303-805(3) (1982)

WAC 173-303-815(8) (1982)

Remarks: The department, under WAC 173-303-815(8), may

require that Part B permit applications include all necessary

information.

B. state statutes and regulations set standards for "trial

burn" permits, utilized to make certain determinations which are

substantially equivalent to those at 40 CFR 122.27(b).

Citations: RCW 7 0 . 1 05 . 1 30 (19 8 0 )

WAC 173-303-815(3) (1982)

We trust that the foregoing will be of assistance to you.

KENNETH O. EIKENBERRY

Attorney General

CHARLES B. ROE, JR.

Senior Assistant Attorney General

CHARLES K. DOUTHWAITE

Assistant Attorney General

-38-
!I These regulations are replaced by ch. 173-303 and were

repealed effective March 12, 1982.

~/ An exception should be noted. Under RCW 70.105.130(2) (a)

the Department is authorized to establish a permit system

for owners or operators of facilities which treat, store,

or dispose of dangerous wastes " •••PROVIDED, that spent

containers of pesticides or herbicides which have been

used in normal farm operations and which are not extremely

hazardous wastes.

(Emphasis added.)

" are not subject to the permit system.

1/ The application form will be prescribed in guidelines to

be adopted by the Department; the Department is required

to publish said guidelines by July 10, 1982.

WAC 173-303-075(4) (a).

!/ The Washington State Patrol has authority to inspect any

"motor carriers" vehicle transporting hazardous material.

The chief of the Washington state patrol shall

direct the necessary qualified personnel to inspect

the cargo of any motor carriers vehicle transporting hazardous material, inspect for proper

securing, and inspect for the combined loading of

cargo which would be inconsistent 'with the provisions of Title 49 CPR, parts 100 ~hrough 199.

Authorized personnel inspecting loads of hazardous

material shall do so in the presence of a representative of the motor carrier. Seal and locking

devices may be removed as necessary to facilitate

the inspection. The seals or locking devices

removed shall be replaced by the washington state

patrol with a written form approved by the chief to

certify seal or locking device removal for inspection of the cargo. RCW 46.48.185.

-39-

(
Certain categories of TSD facilities are deemed to have a

permit by rule. WAC 173-303-805(1). This treatment is

substantially equivalent to 40 CFR 122.26 and 40 CFR 122.27.

i/ Interim status standards included in Chapter 173-303 WAC

do not apply to persons disposing of dangerous waste subject

to a permit issued under the Marine Protection, Research and

Sanctuaries Act; persons disposing of dangerous waste by

underground injection which is permitted under the Safe

Drinking Water Act; the owner or operator of a POTW who

treats, stores, or disposes of dangerous wastes; the owner or

operator of a totally enclosed treatment facility; and

generators accumulating waste for less than ninety days

except to the extent WAC 173-303-200(6) provides otherwise.

WAC 173-303-400(2) (c). These types of facilities are also

specifically excluded from the RCRA permit program. 40

CFR 122.2(d)(2).

2/ "Existing TSD facility" is defined as " ••• a facility which

was in operation or for which construction commenced on or

before [March 12,1982]." WAC 173-303-040(102). The

language defining whether "construction commenced" is identical to 40 CFR 122.3.

~/ Subject to certain categorical exclusions. WAC 173-303-

400(2)(C)i see footnote five, supra .

.2./ Trial burn permits 'are dealt with separately. WAC 173-303-

805(3).

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