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ATTORNEY GENERAL STATEMENT....-. April 21, 1982

Mr. DonaldW. Moos, Director 

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Washington StateDepartment of Ecology Mail Stop PV-ll Olympia, WA 98504

Re: DangerousWaste Regulatory Programs Attorney General's Statement

DearDirector 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 ProtectionAgency (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.TheUSEPA, 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 at40 CFRpart 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 programdescribed 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 ofPhase I. In the case of a State applying for interimauthorization for a component ofPhase II, the State Attorney General .•. must certify that



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### theenabling legislation for theprogramfor that componentwas inexistence within90 days of the promulgation of the regulations comprising that component. State statutes and regulations cited by the StateAttorney General

. shall be lawfully adopted at the time the statement is signed and shall be fully effective by the time theprogram is approved.•• This letter is intended to constitute the "AttorneyGeneral's Statement" element in theState ofwashington's application under 42 U.S.C. 6926(C).
Theformat of statementwhich follows was obtained substantially fromUSEPAguidancematerial. Theguidance documentwereviewed indicated that it covered" ..• theminimum legal requirements ..•" a statemustmeet to obtain authorization. Wehave includedmany remarks and an overview section inan attempt to aid the reader.

OVERVIEW
This introductory section is intended to set out, ingeneral terms, the state statutory authority to regulate hazardous wastes. This section also includes brief remarks on the Extremely Hazardouswaste/Dangerous waste**~tructure** 

### inWashington laws and theEnergyFacility SiteEvaluationCouncil (EFSEC).

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### Chapter 70.105 RCW 1. The 1976 Legislation TheWashington StateLegislature enacted ch. 70.105 RCW in 1976. Laws ofwashington, 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 hazardouswaste." "Extremely hazardouswaste" (hereafterEHW) is defined as a subcategory of "dangerouswaste" inRCW70.105.010(6), "Extremely hazardouswaste" means anydangerous wastewhich (a) willpersist in ahazardous form for several years or more at adisposal site andwhich in its persistentform (i) presents a significant environmental hazard and maybe concentrated by living organisms through a food chain ormay affect the genetic makeupofman orwildlife, and (ii) is highly toxic to manorwildlife (b) ifdisposed of at adisposal site in such quantities as wouldpresent an extreme hazardtoman or the environment (emphasis added.) Themore general category, "dangerouswaste" (hereafterOW),

was defined butnot regulated unless theparticularowinquestion also exhibited the characteristics ofEHW. "DangerousWastes" means (sic) any discarded, useless, unwanted or abandoned nonradioactive substances, included but not limited to certainpesticides, or any residues or containers of such substances which are disposed of in such quantity or concentration as toposea substantialpresent orpotential hazard tohuman health, wildlife or the environment because such wastes or constituents or combinations of such wastes: (a) Have short-lived, toxicproperties thatmay causedeath, injury, or illness or have mutagenic, teratogenic or carcinogenicproperties; or (b) Are corrosive, explosive, flammable, ormay generatepressure through decomposition or other means. TheWashington StateDepartment ofEcology (WDOE), in 1976,

was required to adopt regulations which would identify regulated -4-wastes, i.e., thosewaste exhibiting the characteristics of EHW,

as defined by RCW 70.105.010(6). RCW 70.105.020(1). TheDepartment, by implication, was required to identify dangerous wastes (since EHW is a subcategory ofDW), 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 TheWashington Legislature added three new sections to ch. 70.105 in 1980. Laws ofwashington, 1980 Session, ch. 144. (Now codified atRCW 70.105.120, 70.105.130 and 70.105.140.) The purpose of this legislationwas to equip the Department of Ecology with authority to administer the federal Resource Conservation and RecoveryAct (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) Thepower 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 ofdangerous 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 thepermit 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 environment; (c) Establish, to implement this section: (i) Amanifest sytems to track dangerous wastes; (ii) Reporting, monitoring, recordkeeping, labeling, sampling requirements; and (iii) Owner, operator, and transporter responsibility; (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. RCW70.105.130.


### -5-The 1980 legislation also provided authority for theAttorney 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 ofch. 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 legislationwas 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 bothDW and EHW. RCW 70.105.020(1). Only regulation ofEHW was permitted at that time. Since many RCRA-controlled wastes would not be EHW, the legislature, in 19.80, expanded theDepartment's regulatory authority to coverDW

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.

-6-Under 70.105.050, for example, disposal of EHW at any location other than a site established by or for theDepartment 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 CFRpart 260 et seq. 4. EFSEC Dangerous waste regulation, insofar as operation of an "energy facility" (defined at RCW80.50.020(1)) is concerned, is under thejurisdiction 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 certificationwhich 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 mustprovide 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 inquestion. 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. IDENTIFICATIONAND 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 thatwhich would be controlled by the Federal program under 40 CFR261. Citation ofLaws: RCW70.105.020(1) (Enacted 1976) RCW70.105.130 (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 particularprocedure. The statutes require that rules be adopted, RCW70.105.020(1), butwhether 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 issuewas whether a waste exhibited the characteristics ofDWor EHW, as defined inRCW70.105.010(6). Ifso, then that wastewas regulated.

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### . Theprocedure used to designate solid waste as dangerous waste underWashington law is identia1 to 40 CFR261 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. Theprocedure used inWashington to designate dangerous wastes differs somewhat from 40'CFR261 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 regulationunder Chapter 173-303 WAC than are regulated by EPA as

a result of these differences. A. Mixtures (See discussion below).

UnderWAC 173-303-084, a waste mixture is a wastewhich has not beendesignated as a Discarded Chemical Product, a Dangerous Waste Source or an InfectiousDangerousWaste. Dangerouswaste 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 wastemixture does not meet the standards inWAC 173-303-084 itmay be regulated if it exhibits any of theDW characteristics. WAC 173-303-070(3)(a). 8. Criteria Adangerous wastemay 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

-9-.'. during the designation-by-criteriaprocedure. 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). TheDepartment ofEcology may order a generator to check his wastes against the criteria in certain situations. WAC 173-303- 070(4). Agenerator 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 permitwastes regulated under 40 CFR261 to escape regulation under ch. 173-303 WAC. The dangerous waste lists (sources and discarded chemical products) and characteristics adopted by EPAhave been adopted by theDepartment of Ecology. Agenerator of a listed waste could, underWAC 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 thewastemet any of the criteria (which include characteristics adopted by EPA at 40 CFR261.20), 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 itwas hazardous. Moreover, if a generator

can establish that awaste 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 FORGENERATORS OFHAZARDOUS WASTE A. State statutes and regulations provide coverage of all the generators of hazardous wastewhich is regulated under the Stateprogram. 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. SeeWAC 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 maximumquantities thus excluded are 400 Ib-DW and 2.2 Ib-EHW per month or per batch. B. State statutes and regulations require all generators ofwaste to determine whether their waste is hazardous. Citation: RCW70.105.130 (1980) WAC 173-303-170(1) (1982) Remarks: As a general rule, all generators must determine whether their waste is dangerous. Agenerator of solid wastemay, however, apply to theDepartment of Ecology for a "certificate'of designation." WAC 173-303-075. Acertificate of designation amounts basically to an official statement by the Department that

a particularwaste is or is not designated as a dangerous waste under ch. 173-303 WAC. WAC 173-303-075(3). Agenerator seeking

a certificatemust submit an application in a form prescribed by the Department. WAC 173-303-075(4).1/ This application must, ofcourse, include data sufficient to accurately designate the

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### waste involved according toWAC 173-303-080 through 173-303-103. WAC l73-303-075(4)(b). If a certificate ofdesignation is issued which states that awaste is designated, the generator must comply with allpertinent requirements of ch. 173-303 WAC. WAC 173-303- 075(2)(c). Ageneratormust 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 stateprogramto comply with reporting and recordkeeping requirements substantially equivalent to those found at 40 CFR 262.40 and 40 CFR 262.41. Citation: RCW70.105.130(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 amanner that does not present a hazard to human health or the environment. Citation: RCW70.105.130(2) (1980) WAC 173-303-200 (1982) E. Respecting international shipments, state laws and regulations provide requirements which are substantially equivalent tothose at40 CFR262.50, except that advance notification of international shipment, as required by 40 CFR262.50(b)(1), shall be filedwith theAdministrator. Citation: RCW70.105.130 (1980) WAC 173-303-230(1) (1982) WAC 173-303-230(2) (1982)

-12-F. State statutes and regulations require that such generators of hazardous wastewho 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 programor 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: RCW70.105.130(2) (1980) WAC 173-303-180(1) (1982) 2. Themanifest accompany all wastes offered for transport except in the case of shipments by rail or water specified in 40 CFR262.23(c) and 263.20(e). Citation: RCW70.105.130(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 inwhich the shipment originated or

are independently identified by the state**~n** which the shipment originated. Citations: RCW7 0 . 1 05 . 1 30 (2)(c) (1980 ) WAC 173-303-220(2) (1982)

-13-·.. 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. TheDepartment 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 practices. 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 inwhich the facility designated on the manifest is located and to the state inwhich 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 OFHAZARDOUS WASTE A. State statutes and regulations provide coverage of all the transporters of hazardous wastewhich is regulated under the stateprogram. Citation: RCW 70.105.130 (1980) WAC 173-303-240 (1982) B. State statutes and regulations require all transporters coveredby the state program to comply with recordkeeping requirements substantially equivalent to those found at 40 CFR 263.22. Citations: RCW70.105.130 (1980) WAC 173-303-260 (1982)

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# IDRAFT]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 stateprogramor federal program. Citations: RCW70.105.130 (1980) WAC 173-303-141 (1982) WAC 173-303-180 (1982) WAC 1 73-303-250 (1982) Remarks: Aperson transporting dangerous wastes "on-site" (defined inWAC 173-303-040(58)) is not required to use the manifest system. WAC 173-3-3-240(4). Department ofEcology regulations direct that any personwho has dangerouswaste 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 thejurisdiction of the state ofWashington, e.g., a TSD facility located inOregon. washington law thus does not require that out-of-state shipments of dangerous waste be delivered only to facilities approved under the federal programor a stateprogram. D. State statutes and regulations require that such transporter carry themanifestwith all shipments except in the case of shipments by rail or water specified in 40 CFR263.20(e). Citations: RCW70.105.130(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 cleanup 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 CFR263.30 and .31. Citations: RCW70.105.130 (1980) WAC 173-303-145 (1982) WAC 173-303-270 (1982) Remarks: TheDepartment of Ecology regulations may cover

more spill or discharge situations than are presently covered by**4~** CFR263.30 and 40 CFR263.31. 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 transportwill be treated as a waste unless it is recovered for reuse. IV. STANDARDS FOR STORAGE, TREATMENTAND DISPOSAL FACILITIES State statutes and regulations provide standards applicable to storage, treatment, and disposal facilities which are substantially equivalent to 40 CFR265. 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: RCW70.105.130 (1980) WAC 173-303-340 (1982) WAC**173-303~350** (1982) WAC 173-303-400 (1982)

-16-Remarks: Facility standards equivalent to 40 CFR 265 parts CandDappear inWAC 173-303-340 and 173-303-350 as standards applicable to all owners and operators ofTSD facilities. These WAC sections are adopted by reference as InterimStatus Facility Standards. WAC 173-303-400(3)(a). The state InterimStatus Facility Standards include four categorical exclusions. WAC 173-303-400(2)(c). These exclusions

are consistentwith RCRA Interim Status Standards, 40 CFR265.1(c), although the state rules do not expressly exclude as many TSD ·s"{tuations. E.g., 40 CFR265.1(c)(5). B. Closure'and post-closure requirements. Citations: RCW70.105.130 (1980) WAC 173-303-400 (3) Remarks: InterimStatus Standards published at 40 CFR265 Subparts Gand

### Hhave 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 withWAC 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)

-17-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. TheDepartment of Ecology has authority under ch, 90.48 RCW to order ground water monitoring or remedial action on a case-bycase basis. RCW90.48.120. 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. Afinding 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: RCW70.105.130 (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 inwhich 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 in40 CFR264, 265, and 266. Citations: RCW70.105.130 (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) WAC 1 7 3- 303-640 (198 2 ) WAC 173-303-650 (1982) WAC 173-303-660 (1982) WAC 173-303-670 (1982) TheDepartment ofEcology rules incorporateprovisions nearly identical to 40 CFR264 Subparts

### B through

## o. See WAC 173-303- 280 through 173-303-395, andWAC 173-303-610 through 173-303-670. Much of40 CFRPart 265, i.e., Subparts F through R, has been adopted by reference with minor changes. WAC 173-303-400. Those subparts of40 CFRPart 265 which were not adopted by reference inWAC 173-303-400, i.e., Subparts Athrough E, have been incorporatedelsewhere 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, orpremises subject to regulation or inwhich records

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### relevant toprogramoperation are kept in order to inspect, monitor, or otherwise investigate compliancewith the state programincluding compliancewith permit terms and"conditions and otherprogramrequirements. (States whose law requires a search warrantprior to entry conformwith this requirement.) Citations: RCW70.105.130 (1980) RCW90.48.090 (1945) WAC 173- 303-810 ( 10 ) (1982) Remarks: TheDepartment is granted authority to enter "establishments regulated under this section for thepurposes of inspection, monitoring, and sampling..•" by RCW70.105.130(d). The "establishments" referred towould include any dangerouswaste generator, transporter, orTSD facility subject to regulation under RCW70.105.130 and ch. 173-303 WAc.if In addition, the department and its agents have authority to enter on property in order to investigatewaterpollution orpossiblewaterpollution. RCW 90.48.090. These statutory authorities are limited by the requirement to obtain a searchwarrant unless entry is obtained by consent. AnyTSD facility permitted under chapter 173-303WACmust be opento inspectionby representatives of theDepartment as a condition ofholding a permit. WAC 173-303810(10). VI. ENFORCEMENTREMEDIES State statutes and regulations provide the following: A. Authority to restrain immediately by order or by suit instate court any person from engaging in any unauthorized activity which is endangering or causing damage to publichealth

orthe environment. Citation: RCW70.105.120 (1980)

-20-B. Authority to sue in courts of competentjurisdiction to enjoin any threatened or continuing violation of any program requirement. Citation: RCW7 0 . 1 05 . 1 20 (198 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: RCW70.105.080 (1976) RCW 70.105.090 (1976) Remarks: Civil penalties in amounts up to $1,000 per day may be assessed for any violation ofRCW70.105.010 through 70.105.080 or ch. 173-303 WAC. RCW 70.105.080. Apenalty, once assessed, may be remitted or mitigated by theDepartment of Ecology upon timely applicationmade by the person penalized. Whether a request for remission or mitigationwill be granted is decided by theDepartment 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 accordancewith ch. 43.21B RCW. RCW70.105.080. 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. Ascheme of enforcement authorities such as included in RCW70.105.080 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 ofMotor Vehicles, 81 Wn.2d 155 (1972); Rody v. Hollis, 81 Wn.2d 88 (1972).

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VII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS State laws and regulations provide for public participation in theState enforcement process by providing either: A. Authority which allows intervention as of right in any civil or administrative action to obtain the remedies specified inVI above by any citizen having an interestwhich 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 interventionmay be authorized by statute, rule, or regulation; and (3) Publish andprovide at least 30 days for public comment

on any proposed settlement of a state enforcement action, except in a casewhere 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: TheDepartment 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). RCW70.105.080. ThePCHB is independent of theDepartment ofEcology. See ch. 43.31B RCW. ThepeHBhearing rules include aprovision incorporating by reference theCivil Rules for SuperiorCourt. WAC 371-08-031(2). CivilRule 24(a), which governs intervention as amatter of right, states: (a) Intervention ofRight. Upon timely application anyone shall be permitted to interene inan action: (1) whena statute confers anunconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action andhe is so situated that thedisposition of the action may as apractical matter impair or impede his ability to protect that interest, unless theapplicant's interest is adequately represented by existing parties. CivilRule 24 also limits theDepartment's power to guarantee intervention in a court action broughtby theAttorney General underRCW70.105.120. Intervention as of rightunderCR24(a)(2) has beenallowed topersons "who feel themselves aggrieved," Loveless v. Yantis, 82 Wn.2d 754, 758 (1973), and to an organizationwhosemembers are injured. Id. This standard does not provide exactly theprotection required in40 CFR123.128(f)(2)(i), e.g., an application to intervenemaybe denied because the applicant's interest is adequately representedby existing parties. Moreover, theDepartment has no authority to decide the issue; thePCHB or superior court rulingwouldcontroltheir respective jurisdictions. Whileunable to guarantee intervention as of right, the Departmenthas, by regulation, expressed its intent to " •.foster public awareness, information and consultation, and to respond

-23-actively topublic concerns. 

### " WAC 173-303-900. This commitment does respond to the requirements in 40 CFRl23.128(f)(2)(ii) albeitwithout reference to the exact language of that regulation. VIII. AUTHORITY TOSHARE INFORMATIONWITH 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 EPAupon requestwithout restriction.

Citation: Ch. 42.17 RCW (1973) RCW43.21A.160 (1970) Remarks: ThePublic Disclosure Act, (ch. 42.17 RCW) provides, inpart, that each agency of the State ofWshington shall make available for public inspection and copying all public records. RCW42.17.260. 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." RCW42.17.020(26). "Writing" is defined to include every means of recording any form ofcommunication or representation. RCW42.17.020(28). TheDepartment'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 substantially and irreparably damage vital governmental functions." RCW42.17.330. This legal standard is clearly quite stringent.

-24-TheDepartment ofEcology enabling act, ch. 43.21A RCW, authorizes a procedure to insure that information on unique productive processes may be kept confidential ifdisclosure would hurt the owner's competitive position. RCW43.21A.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. STATEPERMITTING 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 wastepiles 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 operationpending permit action if they comply with State facility standards substantially equivalent to EPA interim status standards at 40 CFRPart 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 withWAC 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 Aand 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 priorto 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 ofChapter 173-303 WAC. WAC 173-303-815(3)(c). Afacility 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 CFR261 and which is in existence

## 2/March 12, 1982 (the effective date ofChapter 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 underChapter 173-303 WAC but not regulated under 40 CFR 261 must also comply with interim status standards, WAC 173-303- 400, byAugust 9, 1982. WAC 173-303-400(2)**(b).~/**

"':'26-**.~.** B. State statues and regulations require that facilities thatwould be deemed to have a Federal permit by rule under 40 CFR122.26 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: RCW70.105.130 (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

orwastewater 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 programat 40 CFRl22.2l(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: RCW70.105.130 (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 • 

# [DRAFT1 -27-

### Citations: RCW70.105.130 (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 requiredwhere immediate compliance is not required. Remarks: washington statutes and regulations do not include any provisions authorizing permitvariances. Schedules ofcompliance are provided for inWAC 173-303-830(6). G. 

### State statutes and regulations provide thatwhere permits are transferred, the transfereemustcomply with all requirements of the permit and the Statemust be notified in advance of the transfer. Citations: RCW70.105.130 (1980) WAC 173-303-810(14)(c) (1982) WAC 173-303-830(2) (1982) H. State statutes and regulations authorizemodification ofpermits where alterations are made to a facility or to activities at a facility orwhere new information is received. Citations: RCW70.105.130 (1980) WAC 173-303-830(3) (1982) I. State statutes and regulations authorize termination ofpermits for cause, including noncompliancewith thepermit, misrepresentation ofor failure to disclose all relevant facts during permit issuance or the permit termand where the activity endangers human health or the environment and can only be acceptably regulated by termination. Citations: RCW70.105.130 (1980) WAC 173-303-820(4) WAC 173-303-825(4)
-28-Remarks: SectionWAC 173-303-820(4) authorizes termination of interim status permits for cause. This section is substantially similar to 40 CFRl22.23(e) dealing with termination of interim status•.SectionWAC 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 173-303-8 05 (4) ( 1982) XI. STATEPERMITTING STANDARDS State statutes and regulations require.that all permits issued by the state require compliance with standards substantially equivalent to Federal standards at 40 CFRPart 264 Subparts Athrough 

### 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: RCW7 0 . 1 05 . 1 30 (198 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: RCW70.105.130 (1980) WAC 173-303-310 (1982) WAC 173-303-600 (1982) WAC 173-303-800(4) (1982) C. Facility personnel training. Citations: RCW70.105.130 (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 inwhich the generator is located indicating delivery of thewaste shipment. Citations: RCW70.105.130 (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: RCW70.105.130 (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: RCW70.105.130 (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: RCW70.105.130 (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) XII. 'STATEPERMITTING 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 theDepartment of Ecology at least 180 days before physical construction begins. WAC 173-303-815(3)(c). Apermit 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. Citations : RCW 7 0 •105. 1 30 WAC 173-303-815 Remarks: The department, under WAC 173-303-815(8), may require thatPart 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 treatment.

-32-**~"** 

### Remarks: Access topermit information is covered generally in remarks above. See, sectionVIII Authority to Share Information with EPA. As stated there, a procedure in superior courtmay be invoked to enjoin examination of any "public record." The court mayenjoin examination if it finds that the examination "wouldclearly not be in thepublic interest and would substantially and irreparably damage vital governmental functions." RCW 42.17.330. Whether disclosure of the name and address of apermit applicant orpermitteewould ever be enjoined cannot now be predictedwith absolute certainty, although the legal standard inRCW42.17.330 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: RCW70.105.130 (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 informationmay be contained in a draft permit. Citations: RCW70.105.130 (1980) WAC 173-303-840 (1982) F. State statutes and regulations require that notice be issued to the public ofpreparation of thedocument containing the information at XII E. or draft permit and of scheduling of a publichearing.

-33-Citations: ,,--,

RCW70.105.130 (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 (ix), 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: RCW70.105.130 (1980) WAC 173-303-840( 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: RCW70.105.130 (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: RCW 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 173-3 03-840(9)(c) (1982) XIII. STATEPERMITTING 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 wouldqualify for interim status under the Federal program to remain in operationpending permit action if they comply with state facility standards substantially equivalent to EPA's interim standards at 40 CFRPart 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 ofdangerous 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. STATEPERMITTING 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 CFR264 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: RCW70.105.130 (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 ofdangerous 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 compliancewith 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: RCW70.105.130 (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 themanifest 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: RCW70.105.130 (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, record keeping, and reporting by facility personnel.

G. Requirements for incinerators. RCW70.105.130 (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: RCW70.105.130 (1980) WAC 173-303-600 (1982) WAC 173-303-670 (1982) WAC 173-303-800(4)'**(1982)~** XV. STATEPERMITTING PROCEDURES - INCINERATOR FACILITIES

, State statutes and regulations set requirements and procedures for incinertor**permitti~g** that are the same as those described at SectionXII 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 (1980) WAC 173-303-670(2) (1982) WAC 173-303-805(3) (1982) WAC 173-303-815(8) (1982) Remarks: The department, underWAC 173-303-815(8), may require that Part Bpermit 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: RCW7 0 . 1 05 . 1 30 (198 0 ) WAC 173-303-815(3) (1982) Wetrust that the foregoing will be of assistance to you.

KENNETH O. EIKENBERRY Attorney General

CHARLES B. ROE, JR. SeniorAssistant Attorney General

CHARLES K. DOUTHWAITE Assistant Attorney General

-38-

# !I These regulations are replaced by ch. 173-303 and were repealedeffectiveMarch 12, 1982.**~/** 

### Anexception should be noted. UnderRCW70.105.130(2)(a) theDepartment is authorized to establish apermit system for owners or operators offacilities which treat, store,
or dispose ofdangerouswastes "•••PROVIDED, that spent containers ofpesticides or herbicides which have been used innormal farmoperations and which are not extremely hazardous wastes. (Emphasis added.) " are not subject to thepermit system.



## 1/ The application formwill be prescribed inguidelines to be adopted by theDepartment; theDepartment is required topublish said guidelines byJuly 10, 1982. WAC 173-303-075(4)(a). 

## !/ TheWashington StatePatrolhas authority to inspect any "motor carriers" vehicle transportinghazardous material. Thechiefof theWashington statepatrol shall direct the necessary qualifiedpersonnel to inspect the cargo of anymotor carriers vehicle transportinghazardous material, inspect for proper securing, and inspect for the combined loading of cargo whichwould be inconsistent'with the provisions ofTitle 49 CPR, parts 100**~hrough** 

### 199. Authorizedpersonnel inspecting loads ofhazardous material shall do so in thepresence ofa representative of themotor carrier. Seal and locking devices may be removedas necessary to facilitate the inspection. The seals or locking devices removed shall be replaced by thewashington state patrolwith awritten form approved by the chief to certify seal or locking device removal for inspection of the cargo. RCW46.48.185.

-39- (Certain categories ofTSD facilities are deemed to have a permitby 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 ofdangerous waste subject to a permit issued under the Marine Protection, Research and Sanctuaries Act; persons disposing ofdangerous waste by underground injection which is permitted under the Safe DrinkingWater 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 RCRApermit 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).

-40-