.. 

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OFFICE OF THE ATTORNEY GENERAL 

Ken Eikenberry, Attorney General 

Temple of Justice, Olympia, washington 98504 

June 25, 1984 

Mr". Donald W. Moos, Director 

Washington' State Department of 

Ecology 

Mail stop PV-11 

Olympia, WA 98504 

Re:	 Dangerous Waste Regulatory Program
 

--Final .Authorization
 

--Attorney General's statement
 

Dear	 Director Moos: 

This letter is written in response to your request for a 

statement from this office with regard to the authority of 

the Washington state Department of Ecology (WDOE) to operate 

a dangerous waste regulatory program in accordance with the 

federal Resource Conservation and Recovery Act of 1976 (RCRA) 

as amended, 42 U.S.C. 6901 et seg. 

RCRA	 authorized federal regulation of hazardous waste 

generators, transporters, and the 

hazardous waste treatment,. storage, 

RCRA also provides .that the u.s. 

Agency (EPA) may authorize a state 

owners and operators of 

and disposal facilities. 

Environmental Protection 

to carry out a dangerous 

waste regulatory program in lieu of the federal program in 

said state. 42 U.S.C. 6926. EPA regulations, which prescribe 

the procedures relating to obtaining said authorization, are 

now published at 40 CFR Part 271. These regulations require 

that a state's application for authorization include an 

"Attorney General's statement." 40 CFR 271.7. This letter 

is intended to constitute the "Attorney General's statement" 

element in support of the state of Washington's application. 

We would note here, for the record, a prior "Attorney 

General's statement" and a letter to you were considered as 

part of this state's application for interim authorization 

under RCRA. See, Attorney General's Statement, dated September 7 ,1982, and letter, Roe and Douthwaite to Moos dated 

June 16, 1983. 

The organization of this statement was obtained substantially from EPA guidance material. The guidance document we 

reviewed indicated that it included the " ... minimum legal 

elements ... If necessary for the required Attorney General's 

statement. An outline is included here to assist the reader. 
·_--.._------_.._--.__..-----------.__ . ---------_._~- .-._----.---.- _._._- ._--.------ "'-. 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984 

Ie
 Page 2
 

OUTLINE OF CONTENTS 

Topics Page 

OVERVIEW
 3


9
 : I. IDENTIFICATION AND LISTING. . - . 

II.	 STANDARDS FOR GENERATORS .•
 11


12
 III. STANDARDS FOR TRANSPORTERS •• 

IV. STANDARDS FOR FACILITIES ..	 12
 

V. REQUIREMENTS FOR PERMITS. • .	 14
 

VI. INSPECTIONS .•.•.• • •	 14
 

VII. ENFORCEMENT REMEDIES ..	 16
 

VIII.	 PUBLIC PARTICIPATION IN THE STATE
 

ENFORCEMENT PROCESS .••.... 17
 

4It t. IX. AUTHORITY TO SHARE INFORMATION WITH EPA	 18
 

X. AUTHORITY OVER INDIAN LANDS . . . . . .	 20
 

,
 
r··_H~-_'_-"-"'_.'-'.'-·-··'-'----- ....-.---.----...---.-----. 

OFFICE OF THE ATTORNEY GENERAL 

June 25,1984
 

Page 3
 

OVERVIEW 

This introductory section is intended to set out, in 

general terms, the state statutory authority to regulate 

hazardous wastes. This section is not derived from EPA 

9Uidance materials. 

Chapter'·70.105 Revised Code of Washington (RCW) 

Chapter 70.105 RCW is the primary statutory authority 

for hazardous waste regulation under Washington law. The 

Department of Ecology is the agency empowered to administer 

the state hazardous waste regulatory program as contemplated 

by RCRA. 

Chapter 70.105 RCW, as it exists today, is the product 

of legislative action in 1976, 1980, 1983, and 1984. These 

enactments are analyzed separately. below. 

The 1976 Legislation 

• 

The Washington state Legislature enacted ch. 70.105 RCW 

.in 1976. Laws of Washington, 1975-1976 2d. EX.Sess. ch. 101 . At that time, ch. 70.105 RCW, in essence, provided authority 

for the Department of Ecology to regulate the transportation, 

storage, and disposal of "extremely hazardous waste." 

"Extremely hazardous waste" (hereafter EHW) was defined 

in RCW 70.105.010 (6)' as follows: 

"Extremely hazardous waste" means any dangerous waste which 

(a) will persist in a hazardous form for 

several years or more at a disposal site and which 

in its persistent form 

(i) presents a significant environmental 

hazard and may be concentrated by living organisms 

through a food chain or may affect the genetic 

makeup of man or wildlife, and 

(ii) is highly toxic to a 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 

The more general category, "dangerous waste" (hereafter 

DW), was also defined. The 1976 act, however, did not authorize 

• 

regulation of DW unless the particular DW in question also 
I 

..... - .._-' -----..•....._-_ ...- _._-- _.. -----_.-. -_... _._----_.. -- -' •... - ._-- .... ­

,I 

OFFICE OF THE ATTORNEY GENERAL 

'June 25, 1984 

Page 4 

exhibited the characteristics of EHW. The definition of DW 

included in the 1976 act is contained in RCW 70.105.010(5) 

which reads: 

"Dangerous Wastes" means any discarded, 

useless, unwanted or abandoned nonradioactive 

substances, including 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 Department of Ecology, in 1976, was required to
 

adopt regulations which would identify regulated wastes,
 

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

defined by RCW 70.105.010 (6) . See, RCW 70.10\.020 (1);
 

ch. 173-302 Washington Administrative Code (WAC).!!
 

The 1980 Legislation 

RCRA was enacted by Congress in 1976. By 1980, EPA was 

proposing its initial major RCRA regulations, the regulations 

which were finally published in the May 19, 1980 Federal 

Register. See, 45 Fed. Reg. No. 98 (Book Two of Three Books). 

These regulations included the detailed requirements for ' 

state dangerous waste regulatory programs for those states 

intending to apply for authority from EPA to operate the RCRA 

program in lieu of EPA. See 40 CFR 1?3. 

The Washington Legislature added three new sections to 

ch. 70.105 RCW 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, in response to 

the then proposed EPA requirements, was to equip WDOE with 

authority to administer a state hazardous waste regulatory 

program in Washington in lieu of an EPA-administered federal 

program. Accordingly, RCW 70.105.130 provides: 

!/ These regulations have been replaced by ch. 173-303 WAC 

and were repealed effective March 12, 1982. 
..". ·t 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 5
 

(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: (~) 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 environment; 

(e) Establish, to implement this section: 

(i) A manifest systems 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. 

The first express mention of RCRA in Washington statute 

law was in this 1980 legislation. The 1980 legislation also 

provided authority for the Attorney General to bring suit to 

enforce ch. 70.105 RCW (see RCW 70.105.120) and required that 

WDOE's rules implementing RCRA be submitted to the Legislature 

prior to adoption (see RCW 70.105.140). 

The Director of WDOE, under authority granted in 1980, 

adopted regulations which were substantially equivalent to 

EPA's RCRA regulations on March 12, 1982. These regulations 

are codified at ch. 173-303 WAC. These regulations applied to 

significantly more wastes than the pre-RCRA Department of 

Ecology dangerous waste regulations. Principally this occurred 

because DW was regulated in addition to EHW, and EPA's definitions of hazardous waste were adopted almost verbatim as the 

• 

state's definition of "dangerous waste. 1I These changes were 

made in order to obtain interim authorization under RCRA, 42" 

U.S.C. 6926(c), and to meet EPA's state program requirements 

at 40 CFR 123. After WDOE's st~ff conducted numerous meetings 
OFFICE OF THE ATTORNEY GENERAL 

June ~5, 1984
 

Page 6
 

and consultations with EPA, the Governor submitted an application for interim authorization under RCRA, 42 U.S.C. 6926(c), 

to EPA on May 3, 1982. Many more such meetings occurred 

after that time also. 

,The 1983 Legislation 

The 1983 session of the Washington state Legislature 

enacted two measures related to WDOE's authority to operate 

a state dangerous waste regulatory program according to 42 

U.S.C. 6926. See, Laws of Washington, 1983, ch. 270 § 2 (now 

codified at RCW 70.105.145), which provides that, 

The Department of Ecology is empowered to 

participate fully in and is empowered to 

administer all programs of the federal 

Resource Conservation and Recovery Act, as 

it exists on the effective date of this act 

(42 U.S.C. Sec. 6901 et seq.), contemplated 

for participation and administration by a 

state under that act. 

• 

And see, Laws of Washington, 1983, 1st Ex. Sess., ch. 65 ~(~(now codified at RCW 70.105A.060(4», which provides 

that, 

The department is empowered to participate in 

and carry out all programs of the federal 

Resource Conservation and Recovery Act, as 

amended, contemplated for implementation by 

a state under that act and may use funds in 

the hazardous waste control and elimination 

account in the implementation thereof. 

The 1983 Legislature amended and increased WDOE's authority 

to assess civil penalties, authorized, WDOE to issue enforcement orders to demand compliance with regulations, and 

increased the criminal penalties for violations. See, Laws 

of Washington, 1983, ch. 171. (Now codified at RCW 70.105­

.080, to 70.105.090, and RCW 70.105.095.) 

. The 1983 legislation was enacted against the backdrop of 

EPA's comments on WDOE's draft application. see,~, letter, 

Feigner to Tower, with attachment dated January 31, 1983 

(copy attached as exhibit 1); and letter, Feigner to Tower, 

with attachment, dated August 20, 1982 (copy attached as 

exhibit 2). These comments included suggestions to the effect 

that EPA felt that the Department's authority should be clarified. We understand that the 1983 legislation did resolve 

any doubts regarding WDOE's authority to adopt a dangerous 
t 

•
 

•
 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984 

Page 7 

waste regulation as contemplated by RCRA. Moreover, Washington state receWd interim authorization as requested on 

August 2, 1983. The Regional Administrator's decision memorandum (copy attached as exhibit 3) discussed the statutory 

authorities and found that the issues presented had been 

satisfactorily resolved. See, 48 Fed. Reg. 34956 (August 2, 

1-983) • 

The 1984 Legislation 

The 1984 session of the Washington State Legislature 

addressed two issues which had troubled EPA and WDOE during 

the process leading to interim authorization, and afterwards, 

i.e., the Energy Facility site Evaluation Council (EFSEC) 

and criminal penalties. See, exhibit one, attachment pages 3 

and 4; and 48 Fed. Reg. 34955 (August 2, 1983). Also, see 

letter, Coate to Moos, with attachment, dated May 25, 1983, 

pages 4, 5-7 (attached as exhibit 4). The 1984 legislation, 

Laws of Washington, 1984, ch. 237, specified that each day's 

violation of WDOE's DW regulations constituted a separate 

criminal offense. The legislation also served to clearly 

vest WDOE with exclusive authority to regulate dangerous 

wastes associated with energy facilities. EFSEC can consult 

with WDOE but EFSEC no longer has a share of the regulatory 

authority. 3'A copy of the 1984 legislation is attached as 

exhibit 5).V 

y The application was approved except with regard to "Indian 

lands." This issue is in litigation. See, Washington v. EPA, 

et al., No. 83-7763 (9th Cir.). This issue is discussed below. 

See, pp. 19-20. 

The 1984 Legislature also enacted one measure tangentially 

related to WDOE authority to adopt DW regulations. See, 1984 

Laws of Washington, ch. 254. This legislation, primarily, 

deals with WDOE studies of "best management practices" for 

dangerous waste disposal. These studies which are now ongoing 

are to be completed, and regulations implementing the recommendations generated by the studies are to be proposed, by 

July 1, 1986. The legislation does not affect WDOE's ability 

to process TSD facility permits, but dangerous waste may not 

be disposed of at commercial, off-site land disposal facilities 

until after the regulations mentioned above are proposed. 

There are no commercial, off-site, land disposal facilities 

for wastes regulated under 40 CFR 261 affected by this recent 

legislation. A copy of this legislation is attached as 

exhibit six. 
•• 

\," .
 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 8
 

This concludes the overview section of this statement.
 

The material which follows was taken from an EPA guidance docu­


ment with the exception of all II citationsII and IIremarks" which
 

were supplied by the undersigned. This material 'complies with
 

the guidance document supplied by EPA and satisfies the require­


ments in 40 CFR 271. The itemized legislative checklist attached
 

constitutes part of this statement and is included to assist
 

the reader . ,"
 

I. IDENTIFICATION AND LISTING 

A. State statutes and regulations define hazardous 

waste so as to control all the hazardous wast~/controlled

under 40 CFR 261 as indicated in Checklist I.A.~

citation of Laws:	 RCW 70.105.010 (Enacted 1976) 

RCW 70.105.020 (1976) 

RCW 70.105.130 (1980)

• ~cw 10.105.145 (1983) 

RCW 70.IOSA.U60(4)(19831 

WAC 173-303-040(25) (definition of 

"disposal" see "Remarks" below) 

WAC 173-303-040(34) (def. of 

"generator") 

WAC 173-303-040(39) (def. of 

"hazardous waste," see HRemarks" 

below) 

WAC 173-303-040(54) (def. of "manifestll )
 

WAC 173-303-040(65) (def. of "personll )
 

WAC 173-303-040(85) (def. of "storage")
 

WAC 173-303-040(94) (def. of "transportationll ) 

WAC 173-303-040(95) (def. of "trans-" 

porter") 

WAC 173-303-040(97) (def. of "treatment") 

WAC 173-303-040(30) (def. of "facility") 

WAC 173-303-040(82) (def. of "solid 

wastell ) 

11 As noted above, the language for part of this statement 

was taken from an EPA guidance manual. The EPA nomenclature 

"hazardous waste" thus appears in this sentence and in part 

of the following text. EPA-designated "hazardous waste" corresponds to WDOE-designated "dangerous waste," although 

"dangerous waste" includes more materials than IIhazardous 

waste. II 
~' , 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984 

Page 9 

General Remarks: The adoption of the regulations cited 

above is authorized by RCW 70.105.130, 70.105.145, and 70.105A­

-.060(4). Those statutes give WDOE authority- to. adopt rules 

necessary to obtain final authorization from EPA under 42 

U.S.C. 6926, including the authority to identify wastes by list 

anq characteristics equivalent to those at 40 CFR 261. The 

rules cited. above define dangerous waste so as to enable WDOE 

to control the hazardous waste controlled under 40 CFR 261. 

WDOE's regulations define tlsolid waste" at WAC 173-303-040(86) 

and provide for certain exemptions to that definition at WAC 

173-303-016. These rules. and WDOE rules for recyclers Hho 

recycle EPA-regulated waste, are consistent with current EPA 

rut"e-s.

-

Certain categories of waste are excluded from regulation. See, WAC 173-303-071. These wastes have been excluded 

from the federal regulatory system. 40 CFR 261.4. 

tlDisposal, It ins~!?"'crs'-the curren-t; _W regulations are concernedl is definedLcrt Vl.bC 173-303-040(25) The term "disposal 

site," as defined{~t RCW 7.. , 1.S not a term used in 

•
 

ch. ~3-303 WAC; "disposal" "facilitytl is the operative langu­


.age. 

While tlhazardous waste" is defined in the Department's regulations, the regulated materials under this state's 

system are called "dangerous wastes" and "extremely hazardous 

wastes." Those terms are defined at WAC 173-303-040(18) and 

173-303-040(29) respectively. 

Remarks concerning radioactive wastes: EPA comments questioned the Department of Ecology's authority to regulate dangerous wastes which are also radioactive. See, exhibit four, 

attachment page four. The issue here is not whether the Department's regulations are equivalent, because no RCRA wastes are 

listed because they are radioactive and radioactivity is not 

a RCRA characteristic at this time, but whether the Department 

can control dangerous wastes which are also radioactive. 

The Washington State Legislature addressed this issue in 

1984. The Department's authority was clarified by amendment 

to RCW 70.105.145, which as amended, states: 

-. 

Questions about the definition of "disposal" and tldisposal 

site" were raised in EPA's comments to Washington's application 

for interim authorization, see, exhibit two page six. The 

Regional Administrator's decision memorandum on interim authorization did not even mention the issue, yet EPA raises it again 

in comments preceding final authorization. See, exhibit four, 

attachment page one. --­
, .
 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 10
 

Notwithstanding any other prov1s10n of chapter 

70.105 RCW, the department of ecology is 

empowered to participate fully in· and is 

empowered to administer all aspects of the 

programs of the federal Resource Conservation 

and Recovery Act, as it exists on the effectiye date of this 1984 amendatory act. (42 

U.S.C. § 6901 et seq.), contemplated for 

participation and administration by a state 

under that act. 

What this amendment established, through the "Notwithstanding 

any other provision of chapter 70.105 RCW ... " lan~age,

is that the Department has authority to administer RCRA, 

despite other provisions of ch. 70.105 RCW (e.g., RCW 70.105­

.010(5) and 70.105.110(1» which may have previously been 

seen as possible limitations on that authority. We consider 

this amendment	 to have adequately responded to EPA's comment 

concerning radioactive wastes. We would also point out, in 

connection with the radioactive waste issue, that Initiative 383, ch. 70.99 RCW, was held unconstitutional. Washing­

•
 

ton state Building v. Construction Trades Council et ale v.
 

Spellman, 518 F. Supp. 928 (E.D.Wash. 1981); aff'd 684 F.2d 

627 (9th Cir. 1982). 

B. State statutes and regulations contain a list of 

hazardous waste and characteristics for identifying hazardous 

waste which encompass all wastes controlled under 40 CFR 

261 as indicated in Checklist I.B and C. 

Citations:	 RCW 70.105.020(1) (1976) 

RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-090 (Dangerous Waste Characteristics) 

WAC 173-303-081 and 173-303-9903 (Discarded 

Chemical Products) 

WAC 173-303-082 and 173-303-9904 (Dangerous 

Waste Sources) 

I I . STANDARDS	 FOR GENERATORS 

State statutes and regulations provide coverage of all 

the generators covered by 40 CFR 262 as indicated in Checklist II. 

•	 

Citations: RCW 70.105.130 (1980) 

RCW 70.105.145	 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-141 
OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 11
 

WAC 173-303-170 

WAC 173-303-180 

WAC 173-303-190 

WAC 173-303-200 

WAC 173-303-210 

WAC 173-303-220 

WAC 173-303-230 ." 

III. STANDARDS	 FOR TRANSPORTERS 

State statutes and regulations provide coverage of all 

the transporters covered by 40 CFR 263 as indicated in Checklist III. 

• 

citations: RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.10SA.060(4) (1983) 

WAC 173-303-141 

WAC 173-303-145 

WAC 173-303-240 

WAC 173-303-250 

WAC 173-303-260 

WAC 173-303-270 

IV. STANDARDS	 FOR FACILITIES 

A. State statutes and' regulations provide permit 

standards for hazardous waste management facilities covered 

by 40 CFR 264 as indicated in Checklist IV.A. 

Citations:	 RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-280 

WAC 173-303-290 

WAC 173-303-300 

WAC 173-303-310 

WAC 173-303-320 

WAC 173-303-330 

WAC 173-303-340 

WAC 173-303-350 

WAC 173-303-360 

WAC 173-303-370 

WAC 173-303-380 

WAC 173-303-390 

WAC 173-303-395 

WAC 173-303-420 

• 

WAC 173-303-430 

WAC 173-303-440 

WAC 173-303-600 

WAC 173-303:'610 
OFFICE OF THE ATTORNEY GENERAL
 

• 

June 25, 1984
 

Page 12
 

WAC 173-303-620 

WAC 173-303-630 

WAC 173-303-640 

WAC 173-303-645 

WAC 173-303-650 

WAC 173-303-655 

WAC 173-303-660 

WAC 173-303-665 

WAC 173-303-670 

B. state statutes and regulations provide for interim 

status and include interim status standards for hazardous waste 

management facilities covered by 40 CFR 265 as indicated in 

Checklist IV.B. 

Citations:	 RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-400 

• 

Remarks: EPA regulations at 40 CFR Part 265, Subparts F 

through R, DOE facility standards included in WAC 173-303­

280 through 173-303-395, and WAC 173-303-420 through 173-303-'~

440, are incorporated by reference as interim status facility' :.' 

standards. WAC 173-303-400(3). Adoption by reference of 

federal rules is limited to rules existing on the date of 

adoption only.~ Amendments to the federal rules enacted after 

adoption of the state rules are not incorporated absent further action by WDOE. See, State v. Dougal, 89 Wn.2d 118 

(1977). 

1. State statutes and regulations authorize owners 

and operators of hazardous waste management facilities which 

would qualify for interim status under the federal program 

to remain in operation until a final decision is made on the 

'permit application. 

citations:	 RCW 70.105.130 (1980)
 

RCW 70.105.145 (1983)
 

RCW 70.105A.060(4) (1983)
 

WAC 173-303-805
 

2. State law and regulations authorize continued 

operation of hazardous waste management facilities provided 

that owners and operators of such facilities comply with 

standards at least as stringent as EPA I S interim status 

standards at 40 CFR 265; and 

citations:	 RCW 70.05.130 (1980)
 

RCW 70.105.145 (1983)
 

RCW 70.105A.060(4) (1983)
 

WAC 173-303-805(2)
 
OFFICE OF THE ATTORNEY GENERAL
 

• 

June 25, 1984
 

Page 13
 

3. state law and regulations assure that any facility 

qualifying for state interim status continues to qualify for 

federal interim status. 

Citations:	 RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-805(2) 

V. REQUIREMENTS FOR PERMITS 

state statutes and regulations provide requirements for 

permits as indicated in Checklist v. 

• 

Citations: RCW 70.105.130(2) (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

WAC 173-303-800 

WAC 173-303-806 

WAC 173-303-807 

WAC 173-303-808 

WAC 173-303-810 

WAC 173-303-830 

WAC 173-303-840 

VI. INSPECTIONS 

State law provides authority for officers engaged in 

compliance evaluation activities to enter any conveyance, 

vehicle, facility or premises subject to regulation or in 

which records 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(2)(d) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

Remarks: TSD facilities holding permits issued under WAC 

173-303-806 are required to allow access for inspection and 

sampling. See, WAC 173-303-810(10). 

Under RCW 70.105.130(2)(d), WDOE is authorized to e~~r .. . establishments regulated under this section ...n£! 

, §I A search warrant may be required prior to entry under 

authority of RCW 70.105.130(2)(d). See, See v. Seattle, 387 

U.S. 541 (1967). In addition, this state's requirement for 

a warrant may be more extensive, under some circumstances, 

than under federal law. See, e.g., State v. Ringer, 100 . Wn.2d 686 (1984). 
I" • 

• r 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 14
 

The term II establishmentsII is not defined as ch. 70.105 ~CW,

nor is ita term of art in Washington Law generally..!/ 

Black's Law Dictionary, (West, 5th Ed. 1979)def.ines IIEstablishment" as a "place of business." Ballentine's Law Dictionary (Lawyers Co-op, 3d Ed. 1969) provides, in addition, 

that an "Establishment" is lIan industrial plant or other 

place of e.mployment. It The lIestablishmentsll referred to in 

RCW 70.105.130(2)·(d), in our view, should include the property, buildings, grounds, etc. related to the dangerous 

waste management activities, including record-keeping, of any 

regulated generator, transporter, or TSD facility operator. 

• 

This issue was raised in EPA comments to Washington 

State's application for interim authorization. See, 

exhibit one, attachment page six; and exhibit two, attachment page four. The issue surfaced again in the decision 

memorandum approving said application. See, 48 Fed. Reg. 

34956 (August 2, 1983). The memorandum did not express any 

reservations about WOOErs authority, but EPA commentators 

raised the issue again for final authorization. See, exhibit 

four, attachment page four. Furthermore, 'EPA's state program 

requirement, with regard to inspection authority, no longer 

specifies that WDOE must rely exclusively on state law. 

See, 40 CFR 271.15(c). RCRA provides independent authorit~: rn-federal law for state inspectors to enter on property and 

conduct inspections. See, 42 U.S.C. 6927(a), which provide~,

in part, that 

V The only definition of "establishmentll in a similar context in Washington law that we are aware is in ch. 69.30 RCW, 

an act establishing sanitary controls over commercial producers 

of shellfish. See, e.g., RCW 69.30.120, which provides in 

part that ---

The department [of health] may enter and 

inspect at reasonable times any shellfish 

growing area or establishment . 

And, see, RCW 69.30.010(4) which provides that 

"Establishmentlt means the buildings together 

with the necessary equipment and appurtenances used for the storage, culling, shucking, packing, and/or shipping of shellfish 

• 

for sale for human consumption . 
," #' 

., 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 15
 

For purposes of developing or assisting in 

the development of any regulation or enforcing the provisions of this chapter, any 

person who generates, stores, treats, transports, disposes of, or otherwise handles or 

has handled hazardous wastes shall . . . ~pon request of any duly designated officer, 

employee or representative of a state having 

an authorized hazardous waste program, furnish information relating to such wastes and 

permit such person at all reasonable times 

to have access to, and to copy all records 

relating to such wastes. For the purposes 

of developing or assisting in the development of any regulation or enforcing the 

provisions of this chapter, such officers, 

employees or representatives are authorized ­

• 

(1) to enter at reasonable times any 

establishment or other place where hazardous 

wastes are or have been generated, stored, 

treated, disposed of, or transported from; 

(2) to inspect and obtain samples from 

any person of any such wastes and samples 

of any containers or labeling for such wastes. 

We are not aware of any provision in Washington law which 

would keep WDOE inspectors from exercising this authority. 

VII. 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. . 

citations:	 RCW 70.105.120 (1980) 

RCW 70.105.095 (1983) 

Remarks: WDOE is authorized to issue compliance orders 

under RCW 70.105.095. This statute provides the opportunity 

to seek modification of the order, in essence, by requesting 

a public hearing and presenting new information to WDOE. A 

person failing to comply with an order is subject to civil 

penalties; the statute does not say that a request for a 

• 

public hearing suspends a violator's liability for civil 

penalties. WDOE may voluntarily stay its orders pending a 

hearing but this procedure does not appear to be mandatory. 
OFFICE OF THE ATTORNEY GENERAL
 

• 

June 25, 1984
 

Page 16
 

B. Authority to sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any 

program requirement, including permit conditions, without the 

necessity of a prior revocation of the permit. . 

Citations: RCW 70.105.120 (1980) 

RCW 70.105A.080(3) (1983) 

Remarks: 

70.105.120 to 

The Attorney G

sue in court to 

eneral has authority under 

enforce ch. 70.105 RCW. 

RCW 

The 

statute does not specify that the potential defendants must 

have had their permits revoked, nor does the Attorney General 

have authority to revoke said permits. Permit revocation 

authority lies with WDOE. WAC 173-303-830. 

C. Authority to assess or sue to recover in court 

civil penalties in at least the amount of $10,000 per day 

for any program violation. 

citation: RCW 70.105.080 

D. Authority to obtain criminal penalties in at least 

the amount of $10,000 per day for each violation, and imprisonment for at least six months against any person who knowingly 

transports any hazardous waste to an unpermitted facility; 

who treats, stores, or disposes of hazardous waste without a 

permit; or who makes any false statement or representation in 

any application, label, manifest, record, report, permit, or 

other document filed, maintained, or used for the purposes of 

program compliance. 

citation: RCW 70.105.090 (1980) 

Remarks: RCW 70.105.090 was amended by the 1984 Legislature to provide clearly that every day's continuance of a 

violation shall be a separate and distinct offense. See, 

Laws of Washington, 1984, ch. 237 § 1~

VIII. 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 to allow intervention as of right in any 

civil or administrative action to obtain the remedies specified in Section VII A, B, and C above by any citizen having 

an interest which is or may be adversely affected; or 

,
 
OFFICE OF'.THE ATTORNEY GENERAL
 

• 

June 25, 1984
 

Page 17
 

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. 

Citations:	 RCW 70.105.130 (1980) 

RCW 70.105.145 (1983) 

RCW 70.105A.060(4) (1983) 

Remarks: Washington law, as a general proposition, does 

not allow unlimited intervention in civil or administrative 

actions which may be brought under ch. 70.105 RCW. See, 

• 

civil Rule for Superior Court 24; and, see, Pollution Control 

Hearings Board procedural rule WAC 371-08-031(2). While unable 

to guarantee intervention as of right, WDOE has, by regulation, ... 

expressed its intent to II••• foster public awareness, information and consultation, and to respond actively to public 

concerns .•• 11 WAC 173-303-900. This commitment responds to 

the purpose of 40 CFR 271.16(d)(2). Any further commitment 

which must be made on behalf of the Department of Ecology can 

be addressed in the state/EPA Memorandum of Agreement, as was 

done	 for interim authorization. 

IX.	 AUTHORITY TO SHARE INFORMATION WITH EPA 

State statues and regulations provide autJ;lority for 

any information obtained or used in the administration of 

the state program to be.available t~ EPA upon request without 

restriction. . 

Citations:	 Ch. 42.17 RCW (1973) 

RCW 43.21A.160 (1970) 

Remarks: WDOE's 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 WDOE. 

We understand that EPA can commit to withhold confidential information only to the extent federal law permits. 

See 40 CFR Part 2, and 40 CFR 217.17(a). 
I •• •• •• 

OFFICE.OF THE ATTORNEY GENERAL 

June 25, 1984 

Page 18 

The Director, under RCW 43.21A.160 is authorized to provide confidentiality in his discretion when the public interest 

would not be detrimentally affected~ The power to approve 

implies the power to approve upon conditions.' State v: Crown 

Zellerbach Corp., 92 Wn.2d 894, 899 (1979). The Director 

thus has authority to grant a request for confidentiality 

Qn'the condition that EPA will be allowed access to the document in question ,and will prevent general public inspection 

to the extent possible under 40 CFR Part 2. This approach 

was presented to EPA in the state's application for interim 

authorization. The Regional Administrator's memorandum of 

approval raised this issue but did not express any reservations about the state's approach. See, 48 Fed. Reg. 34956 

(August 2, 1983). 

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

part, that each agency of the State of Washington 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). 

(~his d.irective to pro,vide access and considerable authority J 

to share information is slightly limited by a procedure available to enjoin examination of any specific public record. 

RCW 43.17.330. This procedure requires a motion and affidavit 

in superior court. The court may enjoin examination if it 

finds that the examination Itwould clearly not be in the public 

interest and would substantially and .irreparably damage any 

person, or would substantially and irreparably damage vital 

governmental functions. II While we cannot guarantee that an 

action to enjoin EPA's examination of any particular document 

would not succeed, the legal standard to be met by any party 

opposing examination is clearly quite stringent. 

•
 
.. 

•J 

•
 

•
 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984 

Page 19 

x. AUTHORITY OVER INDIAN LANDS!!! 

There are twenty-two federally i~cognized Indian reser­

·vations located in Washington State.~ They make up approxi­ mate~y fivl:.Wrcent of the. tot!ilacreage of the ~tate of 

Washlngton.. They range lnSlze from the approxlmately one milli~three-hundred-thousandacre Colville Indian Reservation, and the- approximately one-mill~o)l three-hundred 

thousand acre Yakima Indian Resf~ation~ to reservations 

of less than five hundred acres.~

Washington's reservations are not exclusive enclaves of 

Indian land ownership and residency. Nontribal membef~y pri­ marily non-Indians, reside within these reservations. For 

example, approximately eighty percent of the approximately 

twenty-five thousand residents of the Yakima Indian Reservation are non-Indians while approximately fifrK/percent of the 

Colville Indian Reservation are non-Indians. 

~The Regional Administrator's memorandum approving Washlngton's interim authorization application excluded hazardous 

waste "activities" on "Indian lands." No definition of "Indian 

lands" appears in EPA's RCRA regulations. At this point we 

can only guess at the meaning of "Indian lands" intended by the Regional Administrator. . 

Burke, The Legal Relationship Between Washington and Its 

Reservation Based Tribes 14 (1977). 

!Q/ There are approximately three-million one-hundred fiftythousand acres of land within reservations in Washington. 

Burke, supra, 14. Washington's total acreage is approximately 

forty-three million six-hundred thousand. 

!!I Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 143 (1980). 

!£/ Washington v. Yakima Indian Nation, 439 U.S. 463, 469 

(1979). 

Burke, supra, 26 (Hoh Reservation - four-hundred fortythree acres), 28 (Lower Elwha Reservation -three-hundred 

seventy-two acres), and 38 (Shoalwater Reservation - threehundred and twenty-five acres). 

14/ Burke, supra, 14 . 

15/ See Washington v. Confederated Tribes of the Colville 

Reservation, supra, at 143; and Washington v. Yakima Indian 

Nation, supra, at 470. 
OFFICE OF THE ATTORNEY GENERAL
 

• 

June 25, 1984
 

Page 20
 

Lands within Washington's reservations are not owned 

exclusively by the united states in trust for a tribe or its 

members, by members of a tribe or by a tribe. The ownership 

pattern is varied. More than ninety-nine percent of £R' 

reservation - the Puyallup - is owned by non-Indians. 

Other examples include the Yakima Indian Reservation with 

approximately twenty percent of the reservation being owned 

by non-Indians and the Colville In:d~an Reservation wit.£7 

approximately twenty-five percent being similarly owned.!1I 

Transfers of lands within Washington's reservations to nonIndian ownership wer~~jide primarily pursuant to the General Allotmentl~Gt of 1887~ or one of several federal "homestead" 

statutes.::Y 

Lands within Indian reservations are also within munlClpalities established and operating pursuant to Washington 

law. The city of ToppenisJly for example, lies within the 

Yakima Indian Reservation.£QI Further, a large portion of 

the heavily industrialized tideflats of Tacoma, Washington's t~ird2tJrgest city, lies within the Puyallup Indian Reservatlon. . . 

!.y Burke, supra, 35. Puyallup tribal members have "alienated all but 22 acres of their 18, OOO-acre reservation. II 

Puyallup Indian Tribe v. Port of Tacoma, 525 F. Supp. 65, 

70 (D.C.W.D. WN. 1982). 

17/ See footnote 15. 

24 stat. 388, 25 U.S.C.A. §§ 311 et seg., commonly referred to as the Dawes Act. See generally Burke, supra, chapter II, page 14. 

W See, e.g., Act of May 29, 1908, 35 Stat. 458 (1908) relatlng to the homesteading of lands within the Spokane Reservation. 

Yakima Indian Nation, supra, 470; 26 The Encyclopedia 

Americana 701 (1961). 

W See Port of Tacoma v. Puyallup Indian Tribe, 717 F.2d 

1251 (9th Cir. 1983), cert. pet. pending Docket No. 83-958. 

See also Puyallup Tribe v. Washington Game Department, 433 

u.s. 165 (1977); and United States v. Ashton, 170 Fed. 509, 

515 (Cir. ct. W.D. Wash. 1909). 

I 
OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984 . 

Page 21 

There are at least seventeen known sites of hazardous 

waste generation, storage or treatment activities, subject 

to the regulatory program of RCRA, within Washington's Indian 

reservations. It is probable that there are more of these 

activities existing therein yet to be identified. Pennwalt 

Corporation, a chemical manufacturer, is an example of the 

known activities conducted by non-Indians on non-Indian lands 

located within the Puyallup Indian Reservation as well ~/

within Tacoma's very extensive industrial tideflats area. 

Two other examples of similar activities within the Yakima 

Indian Reservation are those of the Del Monte Corporation and 

Western Farm Service of Toppenish. (Of note, EPA has, pursuant to the federal Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980 ("Superfund Actlt ) ­

42 U.S.C.A. §§ 9601 et seq., designated a portion of the 

Puyallup Reservation's industrial tideflat area as a site of 

hazardous substance releases or threatened releases on its 

IINational Priorities List. 1I See 42 U.S.C.A. § 7605, 47 Fed. 

Reg. 251, page 58481.} Activities subject to RCRA, pertaining to the transport of hazardous wastes, are also conducted 

on federal and state highways within Indian reservations. 

These transport activities relate to hazardous wastes which 

:are generated both within and outside a res~vption and disposed both within and outside a reservation.~

State power to regulate activities of Indians on reservation lands has often beenf£tained from an act of Congress 

authorizing such regulation.~ state regulatory authority 

W See Works Project Administration, The New Washington 

262 (Rev. Ed. 1950). The exact boundaries of the Puyallup 

Reservation have long been in dispute. See Port of Tacoma 

and Ashton, supra. In stating hazardous waste activities 

are conducted within that reservation, we refer to the reservation as we understand it is claimed'by the Puyallup Tribe. 

W RCRA-related activities described in subsection 3B, 

supra, were provided by an administrator of the State RCRA 

program, Mr. Earl Tower, Division Supervisor, Solid Waste 

Division, Washington State Department of Ecology. The 

information was obtained, primarily, from EPA sources. 

24/ In certain circumstances a state may regulate Indian 

activities conducted within reservation boundaries without 

congressional consent. Puyallup Tribe v. Washington Game 

• 

Department, 433 u.S. 165 (1977). See, also, Washington v. 

Confederated Tribes of the Colville Indian Reservation, 447 

u.s. 134 (1980). Likewise, a state is authorized to regulate ;/ 

,/ 
. 

. "~' .... 

I 

OFFICE OF THE A~TORNEY GENERAL 

June 25, 1984 

Page 22 • _-.--~-'-- "-'-'~'-' -- -'-,-.--- D 

on-Indian activity withinr~servation boundaries without

,el'Htfft-o.~dera1-~/:tu:t4>-~~a: 

ay be_expressly granted~ or may be granted by.1mp11cat10n. 

Colorado River Water Conservation District v. united States, 

424 u.s. 800 (1976). Congressional intent, whether stated 

expressly or implicitly, is controlling. Id. 

. . . 

The federal 'hazardous waste regulatory program established by RCRA occupies the entire field of hazardous waste 

regulation. 42 U.S.C. 6929. RCRA also includes a provision 

which allows qualified state progra~6to operate in lieu of 

federal regulation. 42 U.S.C. 6926.~ Under RCRA, a state 

with a qualified hazardous waste regulatory program may apply 

for and obtain authorization to operate its program to regulate activities of Indians on reservation lands. 

• 

WDOE has authority under state law to adopt a dangerous 

waste regulatory program to operate in lieu of the federal 

program in Washington. RCW 70.105.130; RCW 70.105.145; RCW 

70.105A.060(4). WDOE's authority is not limited to particular 

geographic areas of the state. Further, "personll is defined 

as ". . • any person, firm, 'association, county, public or 

municipal or private corporation, agency, or other entity 

whatsoever." RCW 70.105.010 (7). This language obviously 

does not delineate between Indian and non-Indian. When authorized by EPA pursuant to 42 U.S.C. 6926, WDOE may regulate 

}1:4( (cont'd) . Un1ted States, 450 U.S. 544, 101 s. ct. 1245 (1981), and 

Mescalero Apache Tribe v. New Mexico, 459 U. S. 1035, 101 

s. ct. 1752 (1981). See Mescalero Apache Tribe v. Jones, 

411 u.s. 145, 148 (1973); Williams v. Lee, 358 u.s. 217, 

220 (1959); and most recently, United states v.Anderson, 

et al., No. 3643 (E.D. Wash., August 23, 1982). 

Washington v. Confederated Bands and Tribes of the Yakima 

Indian Nation, 439 U.S. 463 (1979). 

26/ This federal provision itself does not limit the geographic scope of a qualified state program. Further, RCRA 

defines IIpersonll to include an "individualll without limitation as to Indian or non-Indian. 42 U.S.C. 6903(15). IIPersonll 

, 

also includes "municipality," id., and "municipality" in turn 

is defined to include If••• an Indian tribe or authorized 

tribal organization .•. " 42 U.S.C. 6903(13). 
•• 

-~. __ ._ .... - . -

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 23
 

dangerous w21}e management activities by Indians on reservation lands. 

We trust-that the foregoing will be of some assistance 

to you. 

KENNETH o. EIKENBERRY 

Attorney General 

c..e.*·...t~ CHARLES B. ROE, JR.l)r 

Senior Assistant Attorney General 

CHARLES 

~U~ K. DOUTHWAITE 

Assistant Attorney General 

W EPA has taken, informally, the position that the state's 

authority to regulate hazardous waste activities on "Indian 

lands" must be found in the ,law outside RCRA. See,~, 48 

Fed. Reg. -34957. There is no provision of EPA's program 

requirements to this effect. We think this position, and the 

Regional Administrator's limitation in granting interim authorization based on it, is not supported by the law. The issue 

is now before the u.S. Court of Appeals for the Ninth Circuit. 

See, State v. EPA, et al., No. 83-7766, Brief for Petitioner 

State of Washington, Department of Ecology. 
.r .,;.. :. .• '-:.~ , '-~'.. I), oJ 

-8-

Current Status: The Region's 'conclusion 1s satisfactory for interim authorization. The issue will be re-examined - - for 11 nl' ... u·t I\ori'z"itron_ -... •.. . XI. AUTHORITY OVER INDIAN LANDS 

Issue: T State seeks authority	 lands. EPA .. - reviewed the S a e sana ys S 0 rmined 

that it ~1d not adequately demonstrate that such authority had been conferred to the State. 

Discussion:- lack of authority to regulate activities on 

t: 

" Indian lands wil' not impa1r the State's abilfty to obtain

interim authorization. 

~current Status: EPA'will administer the Federal program 

", Indian lands. - -/ 

, . XII. AUTHORIZATION PLAN 

• 

Issue: Previous comments indicated that revisions to the 

authorization plan would be needed and that specific 

· recommendations to the State would be forthcomfng during the formal review process • 

Discussion: Specific changes to the State's program for 

final authorization have been identified as indicated in 

the preceding comments. The State needs to expand its 

Authorization Plan to include specific commitments for 

these changes. a'ong with a schedule. 

f 	 Current Status: The expanded Authorization Plan needs to 

be submitted to support a decision to grant interim 

authorization. 

XIII. MEMORANDUM OF AGREEMENT 

A revision to the Memorandum of Agreement is recommended 

is· fo'1ows: 

Page 5: In item '2 It the end of the first paragraph. add the following sentence: Annua' commitments for the 

timely call-in and issuance of permits for al' facilities 

subject to Phase II Component A and B will be reflected in 

annual state work plans • 

•
 
Exhibit 1 1 

u.s.	 ENYIRONMENTl PROTECTION AGENCY 

REGION I 

1200 Sixth Avenue 

seattle. Washington 98101 

",S 533 

JAN 31 1983

• 

Earl Tower. -Chief .
 Soltd Waste ~nlgement Dtvtstoft
 

washtngton DepartNnt of Ecology
 

'Y-l1
 

01,pp1a, Washtngton '8504 

Dear	 Mr. Tower: 

Enclosed 1s a copy 0' the Envfronmental Protection Agency's (EPA's) 

revtew comments on Washtngton's appl1cat1onfor Interim authorizatton of 

the hazardous _aste program. As you know, Headquarters EPA COMment, 

w1th respect to one tssuc--concern1ng the applicabtltty of the exist'ng Revised Code of Wash1ngton 70.105 statutory enforcement authorities-­

will be forthcom1ng when the'r comments are transm'tted to the P~g1onal

Admintstrator by the Assfstant Administrator for Solid Waste end Emerg­

• ency Response, and the Assocfate Administrator for Legal and Enforcement 

Counsel and General Counsel. Wfth this one exception. the enclosed 

comments reflect EPA's complete rcv1ew of the State's application. 

These co~~nts summarfze the major Issues that have arts~n dur'ng the 

review process and identify how the concerns have been or can be resolved 

for interim 8uthortzation. In addition, the corn~nts identify program changes needed for final authorization. The information EPA has identified as necessary to support I dec1s1on to grant interim authorlzatton 

relate pr1ncipally to the following areas: 

1.	 Certifications or assurances f~ the Attorn~ General's OffIce 

regarding certain State authorities. I, 

2. AdescrIption of the Energy FlcilttyStte Evaluatfon Council's 

(EFSEC's) partfcfpat10n and authorities, tncluding the need for 

£FSEC to enter 1nto Memorandum of Agreement '11 th EPA. 

3.	 Mdtt10nl to the Authortzat1on Plan. 

It rematn EPA'. goal to reach a dectston regarding fnterfm authorizatIon 

b1 the end of the lpectfted revtew pertod (lite March) even though addlttonal tn'o~tton f~ the State t, necessary tn order to reach In afft~.ttYe dectston. In the fnterelt of ttme. we suggest that EPA. 

State progru Stiff. and attorneys InHt tn the near future to dtscusl 

these fssuel. 

~§@rn:OWlrglO FEB 21983 

Altlll(' 1l1l"1'~ I'HlI 

ECOlOGY 01" .. I 

"""'~"-':·.~~Iill'~"'~ .. .,.~ ..... r-.."""'~ I~ """'".,~ .... ..,...~~......... ¥;~,~_;::,«"""'" ... ,~-"",,*J.'~-;~~*9't4!':"_.""';,",-<;
 F;t!?1'i'~~!i?'\. ,_
" 

(. 

.. . 

-i • 

;: 'J 

i.l~ "I ..... " l.' I -I­ '. 

,{ 

!J,. 1ft the .utt., plUM call. to dtscuss IQ queltfou or COI8Iftts 10U 

'j

i ., M,. regardIng themt. COIDeRU or regarding Ictlons MCeUa"1 to 

e-plete tbe taterf. authoriatton procesl. '. ,~

i 

\	 Sfnc.....,'. 50: 

r .- .. " 0"0 

~~,	 • • 

kenneth D. Fefgner, ChI.'
 

Vaste Muagement Brancb
 

Enclosure 

cc:	 TOlD Cook. Department of [colog)'. 01111Pta. IfA 

Al Ewtng, Washington Operations Office. EPA 

Charles Douthwatte. Attorney GeMra"s Office. Olympia. VA 

•
 

•
 

t. .' .,.' 

.0 
," #' 

., 

OFFICE OF THE ATTORNEY GENERAL 

June 25, 1984
 

Page 15
 

For purposes of developing or assisting in 

the development of any regulation or enforcing the provisions of this chapter, any 

person who generates, stores, treats, transports, disposes of, or otherwise handles or 

has handled hazardous wastes shall . . . ~pon request of any duly designated officer, 

employee or representative of a state having 

an authorized hazardous waste program, furnish information relating to such wastes and 

permit such person at all reasonable times 

to have access to, and to copy all records 

relating to such wastes. For the purposes 

of developing or assisting in the development of any regulation or enforcing the 

provisions of this chapter, such officers, 

employees or representatives are authorized ­

• 

(1) to enter at reasonable times any 

establishment or other place where hazardous 

wastes are or have been generated, stored, 

treated, disposed of, or transported from; 

(2) to inspect and obtain samples from 

any person of any such wastes and samples 

of any containers or labeling for such wastes. 

We are not aware of any provision in Washington law which 

would keep WDOE inspectors from exercising this authority. 

VII. 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. . 

citations:	 RCW 70.105.120 (1980) 

RCW 70.105.095 (1983) 

Remarks: WDOE is authorized to issue compliance orders 

under RCW 70.105.095. This statute provides the opportunity 

to seek modification of the order, in essence, by requesting 

a public hearing and presenting new information to WDOE. A 

person failing to comply with an order is subject to civil 

penalties; the statute does not say that a request for a 

• 

public hearing suspends a violator's liability for civil 

penalties. WDOE may voluntarily stay its orders pending a 

hearing but this procedure does not appear to be mandatory. 
. .. 

,.. f'	 ,:: 

COMMENTS ON WASHINGTON'S APPLICATION
 

FOR INTERIM AUTHORIZATION, PHASES I AND II AlB
 

~,~~)

J.	 unIVERSE OF WASTE; lDENTIFICATION AND LISTING -

fssu~i: s~veri, 1isues were raised with respect to Washington's authority to identify and r~gulate a universe of waste nearly 1dentica' to the RCRA universe and in a manner substantially equivalent to EPA. These issues include: 

, •	 The St '~~t e 's de {i nition 0 f df s po s a' a sus edin the stat ute 

appears to conflict with the definition found in the reg­ ulations. The statutory definition only applies to the 

disposal of extremely hazardous waste. while the regulatory definition applies to .1.' dangerous wastes. 

Discussion: In his November 2. 1982. memorandum to Ted 

Rogowski of Regional Counsel (page 2, item 15). the State 

A.G.	 asserted that the 1980 statutory amendment at RC~ 70.105 

.130	 provided the necessary statutory authority to cover 

"dangerous wastes. 

• 

Current St!tus - We accept the A.G.'s assertion and find 

that the definition is satisfactory for 1nterim and f1na' 

authorization. although the.A.G. will have to re-certify the 

authority for final authorization. 

2.	 The Team also questioned whether the State's definition 

of dispos~l includes all the practices encompassed by 

40 CFR 260.10. particularly the discharge of waste into or 

.on	 land and water. 

Discussion: In his September 28, 1982,· letter to Mr. Spencer lAddendum ~10). Director Moos asserted that the State's 

definition does include "discharge of any dangerous waste 

into or on any land or water,- and that the definition of 

discharge includes accidental or intentional release. 

Current Status: The State's response is satisfactory for 

lnterim authorization. The State should re-assert its 

. - :	 statement for final authorization, or amend the definition 

t 0 1nc l.u de the 5 e prae t i ( es • . 3.	 The Team was concerned that the State's definition of solid 

waste may exclude hazardous waste that is recycled. 

t.
 

Discussion: In his September 28 letter (addendum '9). Di­


rector Moos asserted that the State's regulations are current­


ly adequate to cover recycled hazardous waste. This asser­


tion was confirmed at a December 9. 1982. meeting between
 

State and EPA staff. For interim authorization, DOE will obtai 

the A.G.'s certification that the State's statute includes 
, . ..j ' •• 

;

. .	 ( ·2· :) 

t '. 

the authority to regulate hazardous wastes that Ire recycled. Director Moos has committed to amending the regulations prior to f1na' authorization to clarify the ambigUity contained in the present definition. 

Current ·.status·:· -:Thfs issue wi'l be resolved for purposes of 

interim authorization once the State completes the following 

two Ict1ons: (1) provides certification from the A.G. that 

the statute includes authority to regulate hazardous wastes . that are recycled~ and (2) commits in the Authorization Plan 

to amend1ng its regulations. 

4.	 The Team was concerned that ~ashington's -two-tiered N approach (for listing hazardous wastes) of allowing the generator to 

determine the hazardousness of his waste either by criteria 

or by list and character1$tic may omit Some EPA-listed wastes 

which must be regulated by the State. Similarly, the delist1ng procedure may allow the State to delist a waste by criteria alone. rather than by a petition to delist I listed 

waste as EPA regulat1onsrequ1re. 

• 

Discussion: As the" result of the meeting held between EPA 

and State technical staff on December 9. 1982. we believe 

Washington's methods for making hazardous wast! determinations 

(i.e., by criteria or by listing. rather than just by list)

is substantially equivalent to EPA's. Similarly. the 

differences between EPA's delfsting method and Washington's de'ist~ng method are not significant enough to warrant 

objection to interim authorization on this issue. However, 

the State should be cautioned that this commitment on the 

part of EPA does not extend to final authorization. We ~nderstand that the State appreciates the differences and 

acknowledges our posture. In addition. the State should mon. 

itor those federally-listed hazardous wastes which the State 

will not regulate as extremely hazardous or dangerous. 

Current Status: The State's method for making a determination 

of hazardous waste (both listing and delisting) is acceptable for interim authorization. EPA and the State have agreed to 

develop a strategy as soon as possible for resolving this 

issue:for final authorization. This may include an amendment 

-fo the State's regulations. 

5.	 As part of the delfsting issue, the team was concerned that 

Washington could not regulate certain carcinogens at the 

required levels, especially listed wastes fOOl, F002. and 

K001. 

•	 

Discussion: In his September 28. 1982. letter (addendum '5) • . Dlrector Moos discussed this issue at length. asserting that 

these wastes contain other constituents that are regulated below EPA levels. He also agrees to monitor closely any wastes 

that would be delisted under the State program. but would po­ tentially not be del1sted under the Federal program. 
( 

. 

t. 

"..j. .' ..	 c· 

-3-

Current Status: The State', discussion and explanation 

are satisfactory for interim authorization; this will be 

.re-examined for ftnal authorization. as discussed in item 4. 

. - - . . ...-.. 6.• 'T.h~ teall·was concerned that Washington's regulations for 

discarded chemical products only cover the situation where 

I generator di scards. or" intends to di scard. I waste 

commercial chemica' product that is off-spec1ficat10n. .. If. for some reason. a generator discards a drum of a 

chemica' that is not off-specification (the chemical may be old or no longer of use). it may not be covered by the 

State's regulation. 

'fI- • 

Discussion: In his November 2, 1982, memorandum, the 

Attorney General certified that th~ State's coverage of 

discarded chemical products is the same as that in 40 CFR 

261.33(1). 

Current Status: This certification is sufficient for . interim authorization. The A.G. must re-certify for final 

authorization. 

7. Washington's extraction method (WEM) differs significantly 

-.


from EPA's Extraction Procedure. The Team was concerned
 

that, under certain conditibns, the WEM test may produce
 

significantly different results from EPA's EP.
 ,i. . 

Discussion: Director Moos' September 28, 1982, letter 

(addendum ~6) asserted that "[t]he Department is willing 

to use EPA methods with the exception of continuous pH "monitoring,-	 which will be monitored at 6- and 24-hour intervals.	 . 

Current Status: This agreement is satisfactory for interim 

authorlzatlon with the condition that, if a significant difference in pH is observed between the 6th and 24th hour, the 

EP will be carried out, with c~ntinuous pH monitoring. The 

State's extraction method must be equivalent to EPA's for fina1 ·a utho r i zat ion. howe ve r i 1n 1i eu 0 fad 0 ptin 9 EPA' s Ep. the 

. - State must submit data supportng its claim of equivalency • 

. II. AUTHORITY TO REGULATE HAZARDOUS WASTE AT ENERGY FACILITIES 

Issue: The responsibilities of the Department of Ecology and 

the Energy Facility Site Evaluation Counsel (EFSEC) with regard 

to regulation of hazardous waste at energy facilities were unclear. Thus, the Review Team requested that the State discuss 

more fully the relationship between DOE and EFSEC and suggested i.•	 that it may be desirable for the two agencies to execute a Memorandum of Understanding to clarify the responsibilities of each. 
t· • ..	 c -4­ '. 

i ( • 

Discussion: EFSEC has adopted, by reference, all of DOE's 

dangerous waste regulations. In addition, DOE and EFSEC 

have executed a Memorlndum of Understanding.	 . 

-Curre.n·t StltuS':· 'A·tter S"everll di scussi ons wi th the Reg10nal

progrim staff an~ Regionl' Counsel, the Team now has a full 

understanding of EFSEC's role Ind responsibilities with regard to regulating hazardous waste at energy facilities; 

.EFSEC has exclusive jurisdiction to regulate 11' Ispects of 

;. the con~~ruct10n Ind operation of energy fac11Tries in the State. 

We were pleased to see that EFSEC has adopted 11' of DOE's 

dangerous waste regulations. However, sfnce it is now clear 

that the two agencies have complete and independent jurisdic­ tion over two separate classes of facilities. the State must 

amend its application to reflect the two-agency structure of 

its hazardous waste program. Specifically, the state must 

provide: 

1•..	 An amended Memorandum of Agreement (MOA), signed by both 

the Director of DOE and the Chairman of EFSEC. 

• 

2. An amended program descrfptfon taking into account the 

requirement of 40 CFR 123.l24(b) which requires the designatfon of I lead agency and I full description of 

both hazardous waste programs • 

3• A stat em e nt by t he At t or ney Ge nera 1 t hat EFSEC has ade 

quate authority to carry out a program substantially 

equ; va 1ent to the Fed era 1 program. The statement must .. 	 specifically address, for EFSEC, every item in the model ~.G. 's statement provided in the Interim .Authorization 

Guidance Manuals. 

Upon review of these additional submissions, we will determine 

whether the State has adequate authority to operate a hazardous 

waste program at energy facilities sufficient for purposes of 

interim authorization. EFSEC's statutory authority will be reviewed for final authorization as part of the pre-application ~~iew of the St~te's statutes. 

III.	 AUTHORITY TO ASSESS PENALTIES FOR VIOLATIONS OF DANGEROUS 

YASTE REGULATIONS 

• 

Issue: The State's statutory sections authorizing penalties specifically reference violations pertaining to the disposal of extremely hazardous waste. Therefore, the Team questioned the statutory authority of the State to assess civil and 

criminal penalties for viol.tions of the dangerous waste 

regulations. 
• 

• 

- -

in the 

the auWith this 

accept­ howThis 

in the Authorization 

.' ..

Discussion: In his November 5.1982. letter to Ted Rogowski. 

·l Washington's Attorney General enclosed an Inalysis of how the 

Stlte may assess tivi·' and criminal penalties for violations 

of its dangerous waste regulations. This analysis shows how • .: -th~ ~980 .meDd~fntJ give the State the juthorfty to write reg­ "vlations for dangerous waste and to assess penalties for violations of such regulations. The A.G. supports his l~sert1on

by submitting evidence of penalties already assessed under 

this statute. 

"."	 "Current Status.: The Office of General Counsel and the Offi~e Enforcement Counsel are reviewing the A.G.'s analysis of the 

issue. 

IV. GENERATOR STANDARDS 

Issue: The Team questioned the applicability of Washington's regUlations to generators who might ship hazardous waste to 

out-of-State facilities. 

Discussion: ~ashington agrees that its regulations do not 

require generators who ship out-of-State to do so only to 

approved facilities, but has agreed in the MOA to require this • 

Current Status: The agreement has been incorporated State's ~OA. The A.G. must certify that the State has 

thority to impose this require~ent through the MOA. 

additional certification by the A.G., this solution is 

able for interim authorization. For final authorization, 

ever, the State has agreed to modify its regulations. re~ulatory change must be incorporated / Pl an. 

v. TRANSPORTER STANDARDS 

Issue: The Team questioned the State's authority to require a 

transporter to clean up a hazardous waste spill regardless of who is responsible for the spill. 

Discussion: The State asserts that the transporter is respons­ ,ble for spill cleanup because WAC 173.303.270 requires that a 

transporter comply with WAC 173.303.145 which regulates spills Ihd discharges into the env1ronment~ The A.G. also provided certification to this effect in his amended statement. 

• 

Current Status: These assertions are satisfactory for interim 

authorization. The same assertions must be made for final 

authorization • 
!

I 

-v­ t 

. VI. PUBLIC PARTICIPATION IN THE ENFORCEMENT PROCESS 

,\ Issue: State statutes and regulatioris do not provide adequate opportunity for public participation in the enforcement process, • either by allowing intervention IS of right. or by having the _.. Stat.e .p r 0v, de. t ~. t:h reelssurInc esspe11ed 0 ut 1n 40 Cf R 123. 128 

. ( f) (2 ) "(·11 ) • " .. :." . .
 Discussion: The A.G. may be Ible to provide the necessary as~urance by certifying that Washington's Rule 24(a), coupled :with an assurance by the appropriate State enforcement authority thtt the State will not oppose intervention on the grounds that 

it adequately represents the public interest. meets this requirement. The State must provide thls assurance in the MOA (or in the A.G. Stat~ment if the appropriate enforcement authorfty is the Attorney General). 

Current Status: The A.G. has not made the suggested cert1f1c~

ation, but has asserted that WAC 173-303-900 meets the requirements of 40 CFR 123.128(f)(2)(11). The State needs to p~ov1de

th~ MOA assurances requested. 

VII. ABILITY TO SHARE CONFIDENTIAL INFORMATION 

• 

Issue: The Team .asked for clarification of the State's authority 

to share confid~ntial information with EPA without restriction.' "0 

Discussion: The State may agree, in the MOA, that it will share 

ill information with EPA. The A.G. must certify that no State 

law prohibits release of such information to the EPA. Also,' 

DOE·.should agree not to use RCW 42.17.330 as a means to deny

EPA access to information. 

Current Status: The agreement is incorporated in the MOA, 

and with receipt of the requested certification, will be 

satisfactory for interim authorization. T~e same.assertion 

and certification must accompany t~e State s appl,cation 

for final authorization • 

.- ..... VIII. Et~ TRY AUT H0RI TY 

• 

Isssue: The team questioned whether the term, -establishments,­

incluaes all buildings (i.e •• office buildings) where inspec­ tion and other records pertaining to the management of dangerous 

wastes might be kept. In its previous comments, the team 

requested an interpretation of RCW 170.10S.130(2)(d) by the 

Attorney General • 

01 scussi on: Item,6 of the Attorney Genera" s November 2, 1982, 

memorandum purports to address th1s issue by stating that -establishments· include generators of dangerous wastes and that -gen- h erators- 1ntlude corporations. 8y addressing generators on1y, t e 
·1. 

(} -7- '~~J ..... 

A.G. paft1a 1y responded to our concern. Treatment. storage and 

disposal fie it1es were not discussed. The revised A.G.'s statement (Septembe 7. 1982, page 18) 11so does not resolve the issue 

because it state that ·'establishments' referred to would include 

Iny ••• T5D f.c11it ubject to regulation ••• • Would In office ~_bu11d~ni·con~lini~g ~cords qual1f, as I TSD facility subject to .reg·ula t·1 0 n?
 

•


Current Status: The Attorn -,Genera' must discuss how the statute author;zes. for purposes ol'lnspections. the entry into any premises in the State which .are cOncerned with the management of dangerous·~astes.

IX. FINANCIAL RESPONSIBLITY AND LIABIL'ITY 

Issue: The Team initially questioned the authority of the 

State to impose its financial responsibility requirements on 

TSDF owners and operators. The Team also identified a need 

for the State to specify liability insurance requirements for permi~ted facilities. 

D1sscussion: After discussion of the issue between Headquarters' and Regional staff. EPA concluded that the State's broad autho­

• 

rity regarding facility owner/operator responsibilities (ReW 70~lOS.l30(2)(c)(1ii» provides sufficient authority. The 

State has agreed, in the MOA. to apply the liability insurance 

requirements of 40 CFR Part 264, Subpart H, to all permitted facil ities. 

Current Status: The Department's assurance in the MOA is 

satisfactory for interim authorization. The A.G. should discuss whether the agreement by the Director of DOE and the Commissioner of EFSEC to use federal rules is in accord with the 

State's administrative procedures laws. Addition of specific liability insurance requirements to the dangerous waste regula­ tions will be necessary for final authorization. 

x. FACILITY STANDARDS 

Issue::·· State regulations do not prohibit the siting of a ~angerous wa~te facility within 200 feet of a fault which 

has had di splacement in halocene time. 

Discussion: Region X asserts·that only one area, in the State 

would be affected by the EPA standards. The State asserts 

location of a dangerous waste facility in this area is un­

• 

likely. The State further asserts that the availability ~f

its ·prov1sion for -fault proofing- IS an alternative to the 

200-foot prohibited. zone is limited to facilities handling only solid or semf-solid dangerous wastes. not extremely hazardous waste. Therefore, Region X.concluded that the State's pro­ vision is adequate for interim authorization. 
Exhibit 2 

u.s. ENVIR&MENTAL PROTECTION &ENCY 

(k, , lEGION X 

1100 I.a," AYINUI ReCE.IVED 

IIA"LI. WASHING'ON "'01 

taz I':~ Zq 1..'., 8: Z3 , J IS. ., • IJ· - .~

.:~'l: MIS 530 ...... -" I; ••• ," ~J1." .. '.. ; ",.. ". .. (Il'-: .. :: ~,' AUG 10 -

Earl W. Tower, Supervisor Solid waste Management Division
 

Office of Land Programs
 Department of Ecology Mail Stop PY-ll 

Olympia, washington 98504 

Dear Mr. Tower: 

During an recent meeting among EPA and DOE representatives. issues relating to the State's program for interim authorization were discussed. 

Although EPA has not completed a formal review. pending receipt of a 

.•
 

signed Attorn~ General's Staten~nt and other infOn@ation to complete the
 

application. a detailed review of the appl fcatfon as submitted has been.
 

conducted. The enclosed comments summarize the results of our review and
 

identify areas of. concern about the State's program with respect to sub­


stantial equivalence with the Federal program. These con.lents are provid­
 ed in advance of the formal review in the hope we can reach early resolution. If so. the formal review should proceed more rapidly. 

In several areas. clarification or assurances are needed concerning washington's statutory authori~to administer a program that is substantially equivalent to the Federal program. Specific issues. as discussed in the enclosure. include assurances that enforcer.lent remedies are 

available for dangerous waste requirements in addition to require~ents for 

extremely hazardous waste. Clarification is needed regarding inconsistencies between the hazardous waste statute and the dangerous waste regulations. These and several other concerns noted about statutory authorities 

have been infonmally discussed by EPA Regional Counsel staff with the 

Attorney General's Office. We are hopeful the questions will be satisfactorily resolved in the Attorney General's Statement to be submitted. 

Another significant area relates to assuring Washington regulates a 

universe of waste nearly identical to EPA's. One concern arises from 

washington provisions for waste exemptions based on the dangerous waste 

criteria (generators designating by criteria in lieu of lists and peti­ tfons for exemptions for lfsted wastes). Our concern fs that where the 

State's criteria do not fully correlate to the EPA basis for listing a 

waste, the State's universe not be nearly identical to EPA's. As was 

discussed during the meeting, there are possfble avenues for resolving these concerns which we will pursue wi th your staff. . 

As noted in prevfous comments, EPA has concerns about assuring regulation ' of dangerous waste .ctfvf~ at energy 'acilities, particularly with 
.'" • 

'.
 respect to permitting. We understand the inforr.wttion to be submitted to
 

complete the application will discuss this issue and include an analysis
 

of respective DOE and EFSEC authorities. For any aspect of the progra~
 

detenained to be in EFSEC's jurisdiction, we encourage the Department and 

the Council to execute a '·ternorandum of lhderstandfng to clarf fy responsi­ b11ities and to assure appropriate standards and procedures will be 

utilized.	 . 

The enclosed COIl1l1ents suppl ernent and in some cases ampl ; fy cor.1llents 

previously sent to Tom Cook on June 11 (copy attached). The enclosure 

does not inClude c~ents on the Memorandu~ nf Agreenent nor on the 

Authorization Plan sfnce both of these docuQents may be affected by resolution of the concerns noted in our C~.nents. We believe the 

Authorization Plan will need to be expanded to provide a more detailed 

strategy to show how Final Authorization will be achieved by January 1985. Specific recommendations for both these documents will be included 

in the formal revi ew.	 .' 

After you have had an opportunity to review these co~ents. we would like 

to meet with Department staff to identify means to resolve these concerns. 

Si ncerely. 

,F.#. ,( .1£~, -" 

• ..' " CC"" ~- - r'­

~n6eth D. Feigner. Chief
 

Waste Management Branch 

Enclosures 

cc: Tom Cook ~Charles	 Oouthwaite 

Al Ewing, Washington Operations Offices, EPA 

,
 
.._- -... -_.------- .~" ... _.. ­

.. .. 

AUG 20 1982
 4


• 

COMMENTS ON WASHINGTON
 

APPLICATION FOR INTERIM AUTHORIZATION
 

Phlse lind IIA &B
 

The most	 significant issues are marked with double asterisk (**). 

REGUlATIONS/PROGRAM DESCRIPTION 

·universe	 of. Waste Regulated 

**1.	 In some cases. it appears the State's criteria will not cover the 

EPA reasons for listing a waste. Thus. the State's two-tiered 

approach of allowing the generator to designate his waste either 

by criteria or by list may. if left to criteria alone. omit some 

EPA listed wastes. Similarly, through waste exemption petitions based on these criteria, EPA listed wastes may be excluded. 

• 

For example, wastes containing carcinogens (IARe) are regulated by Washington at the l' level (10,000 ppm) and a listed waste 

could be effectively delisted or exempted by Washington if it 

contained less than l' of those carcinogens. Under the EPA 

program. a waste (which may have been listed for presence of 

carcinogens other than IARe designated) would still be considered 

hazardous and not delisted unless a petition were submitted and 

approved based on evaluation against the reasons for listing. A 

similar difference would be expected with respect to the PAH 

persistence criteria which Washington regulates at the 1: level. 

It is unlikely EPA would delist any waste where the carcinogenic 

or PAH constituent of concern is present at l~ levels. 

Where the criteria do not correlate to the reasons for a specific EPA listed waste. the factors supporting EPA's listing should be 

considered in determining whether the waste 1s to be exempt from 

regulation. It appears consideration of such factors could be 

included in the State's review of delisting petitions; it is not 

clear how the State could assure consideration of the sa~e

factors if a generator chose to designate waste by criteria in 

lieu of lists. 

**2.	 Washington's extraction method (WEM) differs significantly from EPA's EP and in some cases will be less stringent. The WEM uses 

2.0 liters of a 0.08 Macetic/O.OS Msodium acetate per 100 grams of waste. The EP may, under certain conditions, have a pH below 

that in the WEM since up to 0.2 moles of acetic acid per 100 

grams of waste are used in the EP. Furthermore. highly acidic 

waste (ph 5.0) are extracted in the EP at their natural pH. and 

not buffered to a higher pH as in the WEM. Also. for ~oderate to 

high basic wastes. the WEM would be less stringent than the EP 

since the WEM contains less acid per unit of waste • 

•
 
•	 

-2­

**3.	 Washington's regulations concerning discarded chemical products (WAC 173-303-081)(1)(1) and (b) appear to cove~ only the 

situation where a generator discards. or intends to discard. a 

waste commercial chenical product that is off-specification. If. 

for some reason. a generator discards a drum of a chemical that 

is not off-specification (the chemical may be old or no longer of 

use). it appears not to be covered by the State's regulation. The State should clarify the intent and implementation of this 

provision. 

**4.	 WAC 173-303-120(3) does not include sludges (pollution control

residues) in requirements for regulated waste managetlent before recycling as is provided in EPA's regulation at 40 CFR 261.6(b). 

The State should demonstrate how its prOVision accocplishes a 

substantially equivalent effect as the Federal rules. 

5.	 The State should clarify how the definition of solid waste 

·captures the same intent as the EPA regulations· even though it 

does not include ·other waste material.- as EPA's regulation 

(§261 .2(b» does. (See Note 11 in application on checklist 1. 

p.3.1-5). 

, 

6. The State should clarify how its definition of disposal (WAC 173-303-040(25) accomplishes the same effect as EPA's (40 CFR 

260.10) since the State definition does not include all the .practices listed in the EPA definition. 

Transporter Standards - SpillS 

7.	 WAC. 173-303-270 pertains to discharges during transport and 

refers to WAC 173-303-145 to establish transporter responsibility. WAC 173-303-145. which refers to -any person responsible for a spill or discharge. • seems to require a 

determination of who is the responsible party before the

requirements of these sections become enforceable. 40 CFR Part 

123.128(c)(6) requires that the transporter. regardless of 

responsibility for a spill or discharge. clean up the wastes. 

The State should clarify whether a determination of responsible 

party is required before WAC 173-303-270 bec~es enforceable and 

clarify the relationship between these sections • 

•
 
.. _~ -. .-..,.. 

". 

\. 

..	 

-3-

Manifest System - Designating TSD Facility 

8.	 Under Part 123.128(b)(6) Phase I requirements, state progra~s are 

to require generators who ship wastes off-site to use a manifest 

system that ensures that intrastate and interstate shipments are 

designated .for delivery only to facilities that are authorized to 

operate under an approved State program or the Federal program. 

For intrastate shipments. WAC 173-303-141 prohibitions on 

offering wastes to other than Department pe~itted facilities, 

accomplishes such an effect. However, since WAC 173-303-141 can 

only apply to facilities located in Washington that are subject 

to Department jurisdiction. it is not clear how Washington requires generators shipping out of state to designate only those 

facil ities approved in that state (either by a State with 

authorization or by EPA). 

Seismic Siting Standards - (follow-up to conment #3 June 11, 1982 letter) 

• 

9. Based on available data supporting its standards, EPA does not 

believe exemptions to the prohibition on locating new facilities 

within 200 feet of certain faults will be warranted. The State 

should explain its intentions and criteria for use of this 

engineering exemption provision, since it does not appear to be 

substantially equivalent to the Federal requireoent. 
..w, -.	 ·1t .. 

-4-

ATTORNEY GENERAL' S STATEMENT 

RCW 70.105 Hazardous Waste Disposal Statute 

**1.	 It appears RCW S70.105.080 and 70.105.090 are limited to Yiola~ions pertaining to the disposal of extremely hazardous 

waste (see reference to IS 70.105.010 through 70.105.090 

contained in .080 and .090). If this is correct, the State, in 

effect, has no civil or criminal penalty provisions covering the 

generation, transportation, storage, trea~ent and disposal of 

dangerous wastes. The Attorney General shoul d di scuss ho\" 

§70.105.080 and 70.105.090 relate to §70.l05.130. And, if 

problems are present, how the State can remedy the situation. 

**2.	 There is an inconsistency between the definition of -dispose or 

disposal- in the statute (see RCW §70.105.010(4) and the 

definition of the same tenms in the regulations. The statutory definition refers explicitly to extr~ely hazardous wastes, while 

the regulation at WAC § 173-303-040(25) refers to dangerous 

wastes.	 The Attorney General should clarify this lnconslstency. 

• **3 • RCW 570.105.010 (3) defines -disposal site- only in terms of 

extremely hazardous waste; the regulations do not separately define this term. The Attorney General· should clarify whether 

this definition in any way limits the DeparUJent's authority to 

regulate the disposal of dangerous waste. 

**4. It is unclear whether the State has sufficient statutory authority pursuant to RCW S70.105.130. to impose ·the financial 

requirements found in WAC 173-303-620. The Attorney General 

should elaborate on the scope of authority granted to the State 

in RCW Sectio~ 70.105.130. 

**5. RCW 70.105.l30(2)(d) does not explicitly give the State the 

authority to enter and inspect conveyances, vehicles, and . premises in which records are kept, as required by 40 CFR Part 

123.128 (9)(3). The Attorney General should be asked to 

interpret 5170.105.130 (2) (d). part1 cul arly the term 

-establishments regulated under this section, - and discuss 

whether the State has authority to enter these premises. 

6. The Attorney General should clarify whether the definition of 

-person- RCW 10.105.010(1) includes Federal agencies • 

•
 
-.' . ."-_.... "-- ---- . _.._. 

'. 

.'" 

1	

• -5-

AbilisY to Share Informatfon with EPA 

**7.	 It appears that RCW Section 43.21A.160 limits the State's ability

to share fnfonmation with EPA in that the Director has the 

discretion to withhold information that a petitioner has 

requested to be treated as confidential. The Attorney General 

should clarify whether the State is able to share information 

with EPA without restriction in accordance with 40 CFR 123.132. 

8.	 RCW 542.17.330 also seems to limit the State's authority to share 

information with EPA without restriction. The Attorney General 

should explore the possibility of not including EPA in 

detenlining the applicability of this section. 

Public Participation 1n the Enforcement Process 

• 

**9. In addition to the two alternatives for public participation in 

the enforcement process identified in Part 123.128(f)(2), EPA has 

identified a hybrid approach that satisfies the requirements. It 

appears the Attorney General may be able to certify that 

Washington Rule 24(a), coupled with certain assurances by the 

appropriate state enforcement agency that it will not oppose intervention, satisfies the public participation requirements (see attached Federal Register discussion of this hybrid approach) • 

,
 
Exhibit 3 

Federal Resister I ~ol" .!.;Jo. 14~ I ~e.da~. A~lUlt 2. ',983 I F t' and Regulation. 

t	 II PART 2OO-F1NANCIAL ASSISTANCE Ph.le n. 40 CFR 271.131(a) (formerly aclmini.tration of the haurdOUI wa.te 

•	 ~i' TO LOCAL EDUCAnONAL AGENCIES 1121137(a): 47 FR 3::371. July 28. 198%) manlgement proaram will revert to EPA. 

- ) MEET SPECIAL EDUCAnONAL. ~.. further providel that on July 28.1983.-­ Usa of SubjectllD to CFIl Put.Z7'1 • EDS OF DISADVANTAGED • ·w·. •.Interim authoriutioM terminate e'Lcept • CHILDREN .;.. . .-••."":' ...;.,_ • ... wbere the State hal .ubmlUed by tbat - • Haurdoui·materiatl. Indianllnda;, 

•	 '.. ••. date aD application lor aU Pha.e.' .Reportina Ind recordkeepina • 1200.51 (Amended)	 Component' of interim authorization. - requirement.. Wa.te treatment and 

Section ZOO.58 il amended by inserona Where the luthorization (approval) of dilpo,at. Intergovernmentalrelatioftl. 

,Approved by the Office of, the State prosram 'erminatel. EPA I. to Penaltiel. Confidential bUlineli 

Management and Budget under control adminilter end enforce the Federal Information. ... 

number 18t()..0504)" after the dtation of program in thole Statet. However. the ~" 2002(a). 300& and 7004(b). Solid Wa.te ~uthority a.'~. e~d of.the eeclioQ. Reaiona1 Adminiltratpr miY. ror Sood Dirpo.al ACl a. amended by the ltuDurce 

tnDac...-:IPIW e.o-l .. - cause. extend the July 16.1983. deadline Conaervatinn and Recovery Act of 1878. at 

etu..INO COOl '., ."." • lor lubmilaion of the interim . amended (42 U.s.Co e9'12{I) and 6974IS))) '. 

authorization application and the' Dated: July u.. 1811· • • 

deadline fortennination 9f the approval Da.rI•• R. ,.a.. . ENVIRONMENTAL PROTECnON . of the State program.' •. .. lIr,ionol Admini,trrJlDr.
 

AGENCY Nole.-40 erR Par11Z3. lncludinl the July I"' OK. U-ZDM2 F.IecI"'~: ~tS ••1 ' •
 .. 198% amendment. (4' f'R 3!373J. wa. eauJNO COOl '~IO-II 40 CFR Part 271 ,. .. . ftcodified on April 1. 1983. a. 40 CFR Part Z7J
 

(48 FR 14%48).1 .
 ISW~AL 2'Ot-t) , • '0 CFR Part 27'
 

Hazardous Waste Management authorization on July 18. 1981. However.
 

Tennenee received' Phase i interim 

Program; Tennessee; R~quest ISW-1o-FRL 2tot-3) for Tennessee·s abilily 10 apply for Phille
 

Extension of Application Deadline for Components A. B. and C. inlerim
 Wa~hlngton;Phase I and Phase II, Interim Authorization.. Phase II, authorization before July 26. 1983. wa. Components A and B. Interim Components A. 8. and C .• delayed due to legislative changes Authorization of the State Hazardou. during the 1983 Tennessee Ceneral ACENCY: Environmental Protection	 Waste M~nagementProgram Assembly and the adoption of land ~gency (F.PA). disposKI and liability insurance . AGENCY: Environmental Protection 

AcnON: Notice of Extension of ­ regulations. Tennessee ha' committed to . Aaency. • Application Submission and Interim ~he following schedule for applying for ACTION: Approval or State Program. t~orizaUon Period. appl}'ina for authorization:
 

-September 1983-Submit drKft SU......ARY: Pursuant to Resource .
 . ,_ .........RY: On July 21, 1983. the Slate of
 

application ror Component C Congervation Mod Recovery Act (RCRA) "	 Tennessee requested extensions of the 

de~dline -September 1983-Submit final provisions. the State of Wc.shin!lton has fo:- submitting a complete application for Componp.nts· A and B appli.·rl for iJltl~rim authorization Phasp. Interim Authorization application under 

-September 1983-Hold M public I and Phase II. Components A and B. the Resource Conservalion and 

Recovery Act hearing on proposed land disposal The Environmenhsl Protection Agency of 1976. as amended. for 

and liability insurance regulations (F.PA) has reviewed \\'ashinglon·. rhaseU. Components A and B. until 

-October 1983-Requesl the Tennessee applicCJlion for Pha~t'~ I lind II. September 15.1983. and for rhase IL 

Component C. Solid Waste Disposal Control Board Componentt A and B. interim . until October 26.1983. 

10 adopt the resulation.	 authoritation. andhas determined that EPA i. granting this extension. One 

• effect of this action is to allow -October 1983-Approval of Washin~lon·1hazardous waste program

regulations by Tennessee Attorney II substantially equivalent to the Federal TeMeuee to lubmit its application arter General	 program covered by Phases J and IL July 26. 1983.11 also avoid' termination ·~ctober1983-Submil complete' . Components A and B. The Slate of on July 28 of the interim autborization 

which EPA granted previously to the application for Component C Washington is hereby granted interim

-December 1983-Submil draft Final authorization for Phases I and IL . State for the Pha,e I portion of the .' Authorization application Components A and B to operate the • hazardoUI waste program. .	 r State', hazardous wasle program E'FFECTlV! DATE July 25. 1983- Dec:iIloa , covered by the,e pha,el in lieu of the 

FOit F'URTHEit INFORMAnON CONTACT: On July 25. 1983. In c:on'ideration or Federal prOjranl. except a. to Indian 

Jame. H. Scarbrough·. Chief. Residual. . TeMessee·. effortI 10 obtain the land.. Management Branch. Environmental necessary legi.laUon and ~gulationa	 > 

IFFECT1VE DATE: August 2..1983- Protection Asency. 345 Cour1land Street. and the impact on the reBUlated 

N.£.. AU"nta. Ceorail FOit fURTHER mFORMAnON CONTACT: 30365. Telephone community. I found there wal Sood 

Betty Wiese. Waste Management . (404) 881-3011.	 caule 10 grant the State'. request for ~e Branch. U.S. EPA. Region 10. 1200 Sixth SU~MENTARY INfORMAnON: extensions beyond the deadline (or '. 

Avenue. Seattle. Washinaton 98101•. . applying for Phaae U. Therefore.
 BacklroLlD. .• Tennellee mUlt officiaUy (206) 442-2857.
 submit a· 

40 CFR 211.1:2(c)(4) (formerly complete application ror Phale·D. . SUPPLEMENTARY INfORMATION:
 

. 1123.122(c)(4); 47 FR 323". July ze. Componenta A. B. by September 15. .
 

./~) Blcklrowa• requirel that Slatel which have 1983. and for Phale II. Component C. b, 

"eceh,ed any but not aU Ph.lea' October Z6. 1983. If the State faill to In the May 19. 1980 Federal Register 

Componentl of interim authorization .ubmlt a complete Ipplication by the.. (45 FR 33(63). the EPA promulJt8'ed 

•	 amend their orisinal lubmillion. by July date•. approval or theStlte proFa1ft • ftRulationl. pUfluant to Subtitle C orlbe 

28.1983. to include aU Components 01 wlll tenninate lutomatically and Resource Conlen'ltion Ind Recovery

• 

• 
() .... . . 

• t	 Federal Register /. Vol. 48. No. 149 I Tuesday, August 2. 1983 I Rules and 'Regulations 34955 

•

t	 r 

t 

.'-:. : Act (RCRA) or 1978 (al amended), to or the Eneru Fadiity Site Evaluation a Memorandum or Understandir,8 

protect human health and the Council. . between EFSEC and DOE; provided a 

environment from the improper PeDdina receipt of documentl and . discussion of EFSEC's authority to adopt 

management of hazardoul waite. Infomlation to complete the application. naJes: and provided a Reneral 

Induded in these regulations. which EPA conducted a thorough review of the description of th~ EfSEC project 

became effective November 19, 1980, application II .ubmitted to evaluate . certification process. The application

•	 . wer:e provilions for a transitional Itage lubstaatiaJ equivalence with the Federal Included informa tion describing 

In which Sta tel would be granted .program. EPA'. commentl included hazardoul waste activity at energy 

Interim program authorization. Interim requestl for clarification or asaurance. 'acilities. At the present time. haUrdous 

authoriution wiD be granted in two regarding bow certain alpect. of the waste activity at energy facilities under 

phases correspondint to the two Itagel program would be carried out. aa USEel jurisdiction is limited to 

·In which the underlying Federal program discusled below. To complete the possible intermittent generation at three 

takes effecL application and to respond to the facilities, burthere is no on-lite 

questions and issues raised by EPA. the hazHrdoul waste treatment. stora8e, EPA'. Phase I rqulationl State submitted additional information disposal activity at these faciJities. No ., (promulgated May 19,1980) establish. and addenda to its application on change in the extent of hazardous waste among other thing,: the initial September 28.1982. November 5,1982. activity il expected in the foreseeable identification and listing of hazardous and November 19, 198Z. incJuding a future. The Authorization Plan w6s also wastes; the standards applicable to completed. signed Attorney General'l amended to include commitments for generators and transporters of ..	 Statement. EPA determined these final authorization. In response to EPA's hazardous wastes, iocluding a manifelt materials completed the application. final comments. the State provided Iystem: and the "interim status" On December 2.Z. 1982. EPA made the additional confirmation of EFSEC standards applicable to existing complete application available for '. "authorities to regulate hazardous waste hazardo\J~ waste management facilities pubJic inspection and published a notice generators and a further description of before they receive permits. in the federal Register inviting the EFSEC. participation in the State's In the January 26. 1981 Federal public to comment on the Washington .program. E,fSEC also aRreed to abide by Register (46 FR 7965), EPA anno~ced appliccrtion for interim authorization the terms of the Memorandum of ,. the availability ofportions of the second Phase I and Phase II, Components A and Agreement (MOA) with EPA with 

phase of intenm authorization. EPA'. Bof the hazardous waste management respec: to their regulation. of hazardoul 

decision to make the second phase of program at a public hearing to be waste generators. interim authorization available in conducted by Region 10 on January 25. 2. Universe a/waste regulated. EPA .. : 

components was based on the desire to 1983. The notice also invited the public requested clarification regarding how proceed with authorizing Slate program' to submit written comments to Region 10 use of the State's dangerous waste as expeditiously as possible and by the close of the public comment criteria for designation and deJisting of 

because some of the subparts of the period, February 1, 1983. As EPA waste would assure regulation of a Federal regulations containing conducted the fonnal review of the nearly identical universe of waste: how 

standards for permitting hazardous complete application, some additional . discarded chemicals tbat are not "offwaste treatment. storage and disposal questions arose for which fur1her Ipecifica!ion" are regulated: how the 

faciiities (40 eFR Part 264) were clarifications or assurances from the State's derlJlitjo~ of solid wasle proVides promulgated at different times rather State were requested. As discussed for regulation 01 waste that ~re recycled: than in one single promulgation al below, on April 1 and June 20, 1983, EPA and how the extract procedure toxic test . received additional assurances from the originally anticipated. Component A of methods for pH monitoring are State to confirm and clarify inronnation Phase Ucontains. standards for ·substantially equivalent to EPA·s. In the contain~ i~ the complete application. pennitting containers, tanks and certain completed application, the State 

kinds of 8urface impoundmentl and Discussioa included an addendum comparing the 

waste piles. Corr.ponent B contains Washington'l State's criteria with EPA listings; an applicatioR.al initially standards lor pennitting hazardoUi	 Attorney General', opinion that .ubmitted. demonstrated that the State'l waste incinerators.	 discarded chemical products (whether program latisfied many of the 

·The Governor of the State of	 off-t;pecification or not) are subject to requirement. for a substantially Washingtonlubmitted an applicatioo to	 equivalent program. The following ia a the State'l regulations: assurances from

EPA for Phase I and Phale IL .	 th~ DOE regarding authority to regulate lummary of the major isluel identified 

Components A and B. Interim	 during recycled waites: and assurance. the coune of EPA'I review of the 

authorizatioo on May 3. 1982. The State State'. application aDd how the State reKarding extract procedure toxic: pH 

choae not to lubmit a draft applicatiOD amended the appUcation to respond to monitoring procedures. In response to 

to EPA fo advance of the formal EPA coneema: . EPA', fmal comments, the Anomey 

• application. EPA conducted an inJtia! •• 1. The role 01 th~ Energy Facility Sit~ Ceneral'. omc~ atso provided an 

review of the application to det~rmine Evaluation Council(EFSEC). :. opinion that the State hal authority to 

whether It wal complete: the EPA found EFSEC pre~mptl other State . :. •. . regulate recycled wastes. The 

the application to be incomplete, in part requirements in approving the '. - .•. Authorization Plan was amended to 

because the Attorney Cenera.'. constnJction and operation of larae . Include Ipecific commitment. to develop 

Itatement wal incomplete. The energy I'rojecta. EPA requested a necessary c!ata or regulatory . 

application. allo, did not identify the description of how hazardoul wa.t~· • amendment' to demonstrat~equivalent 

liability in.uranee requirem~t.that activity at these (apUllel would be . • designation and delistiJ18 procedures 

would apply to permitted faeilitie•. EPA regulated. In the compl~te application. and to amend State regulations to 

alao identified I gap in the de.cribed the State demon.trated EFSECI ' ..: eliminate ambigUity regarding recycl~d

._ICOpe and coverase of hazardoul wa.te adoption of the haurdoul wa.te .0: ':~ ' waltel. ­

aou.rcn in the Stlte-tho.e eoergy regulationl of the lead a8eney, the . :. I. C~nerator/transport~r .• . r.cilitiel that are under the jurildiction Department of Ecology (DOE); lubmjtted requirem~nts; EPA requested 
•• 

.~.~ ~'3«9Sti" Federal Register' Vol. ~UO. 149 , Tuesday, August 2..1983 , R ~.~ and Regulations 

f clarification regardina the requtremant amended to dearly Id~ntify the 1C0pe of amended venion in the July 28. 1982 "~' that seneraton designate on ~e enforcement authority. In the complete promulsation. •.~. . 0 ••: 

:'-~'iPPin8 manifest only permitted or . " • application. the Attorney General al.o 

roved racilitie. when ,hippma .. -.... darified the ,cope and intent of . aste' out of.ute for treatment. ::. .tatutory authoriUel for .haring 

Itorage or dilposal; and resard.iDa " . " Information with EPA· and authority to 

requirements for transporter .. ent.,. premi.e. for iDlpection of record.. 

respon.ibllitie. ill the event of .plll. of In the final comment" EPA requelted. 

0'	 haurdoUi wa,te. in tranaiL In the lpecific commitment from the State DOt 

completed application. the State :. to 0ppole intervention by dUzeD . o~'

darified that under itl nale.. . .. intervenon in civil enforcement ae:tioDi 

lranaportera are required to take actioD brouaht lothe State couru. EPA al,o 

in the event of a Ipill in transit and '. requelted an explanation resardina 

t:.

o· 

included MOA asaurance. regardm, authoritiel of the Pollution Control 

requirementl for senerator delignaDOD • Hearinga Board-e State admini.trative 

of permitted faeilitie•. In response to . appeal, board. To respond to the.. 

EPA'. final commentL the Attomey concems,the State made an agreemeDt 

Ceneralltated that the Stateha,the in the MOA not to 0ppole interventioD 

authority to maKe IUch MOA in State courtenrorcement proceeding.. 

commitments. The Authorization Plan The Pollution Control Hearing, Board 

was amended to commit to a regulatioD . initiated rulemaltins to the effect that . 

amendment to anure fully equivalent the Board will not modify pennitl on 

senerator requirementa. appeal, but instead will remand to the . DOE any permit found invalid. 4. Facility standards/permitting 6. Indians Lands. EPA had cOmmented procedures. EPA requested clarification that the State's application as initially regarding what liability insurance lubmitted did not indicate whether the requirements would apply to pennitted State was asserting jurisdiction over facilities since State regulationl in thil Indian lands. A3 indicated in 40 CFR regard are very genera))y stated: and Part 271.121(h) (formerly 40 CFR huw the Slate would latisfy the 123.121(0), States are not requi~ to requirement that all RCRAdraft permit have luch jurisdiction to qualify for notices be made public by newspaper authorization. Jr auch authority i.

j:;
 bli'cation and radio broadcast. In the
 asserted. the State'. application mUlt . plete application. the State provided provide an appropriate analysis of the ... ..>ssurances in the MOA to apply State's authority to do 80. As discussed liability insurance requirements . in the preamble to EPA regulations for identical to EPA's and to provide both authorization (45 FR 33378. May 19, radio broadcast and newspaper 19M). EPA assumes a State Jacks publication for all ReRA draft permit authority unless the State affirmatively notices. 10 responl';e to EPA's final asserts authority and supports it, comments, the DOE included a assertion with an analysis from the commitment in the Authorization Plan to State Attomey Ceneral. The State of amend Slate regulations to specify Washington asserted. in the complete , liability insurance requirement. {or application. that upon authorization it permitted fac:ilitie.. • could implement the State program on S. Statutory/lesaIDuthorities. EPA Indian lands. AI discussed in more requested clarification regarding detail below, EPA ha. concluded the 

apparent inconsistencies within the State'l assertion is not adequately State's haurdous waste statute itself lupported in law or by the analy.ii, and between the 8tatute and it. . provided; therefore. EPA will retaiD 

implementing regulationl; and authority for implementing the Federal 

clarificaton of authoritie. for Iharina program on Indian lands. 

confidential inronnation with EPA. for •	 inspection entry authority and for Scope of Component A. Pha..D 

8ssurins public participation in the AI orisinaDy promu18ated on Janu." 

enforcement procell. EPA noted that 12.. 1981, Component A included . certlsin atatutory language appeared to permitting Itandard. for unain classel 

limit enforcement remedies to proaram of lurface impoundments and waite '. 

violaUont involving extremel, pUe. used for treatment or ,torase of 

hazardoul wa.te. a lubset of the State'. bazardou. waltel. The State', 

unh'erse of regulated dasngerous ·wa.te.. application for Component A i8 • 

In response to EPA·, comment. the .' conailtent with thole January 12.. 1981 

Attorney Ceneralanlwered that the ruJel. On July 28, 1982. aa part of the 

_tate hal the authority to enforce aU . facility .tandard. for land dilposal 

•.rogram requirements; thi. opinion wal permitting. EPA amended the earlier'
 

.uPPoi1ed by evidence of enforcement Component A nale. for lunace
 

acHona initiated by DOE. The statutory impoundmentl and wa.te pilei and
 

lanBU8~ In quulion wa. recentl, replaced the previoul rule~ with the
 

At the lame time. EPA announced a 

policy whereby Statet that had prepared 

applicationl baled on the original EPA .. 

-.nnounc:ement could proceed under 

thole applicationl without a change in 

the application requirementl. Where a 

State. like Washington. hal proceeded 

to the Itase of lubmittal of a complete 

appl,ication prior to the effec.tive date of ... 

the amended regulationl. the State could 

, be authorized to to illue ReRA pennitl 

to the categories or facilities covered hi' . the orisinal component for the limited 

clall of lurface impoundments and 

waite pileI used for treatment or 

.tor8se of hazardous wastes. The~fore,

Washington i. being granted interim 

authorization for the limited class of 

lurface impoundments and waste pileI 

. consistent with the Ja.nuary 12. 1981
 

rule..
 ., Response to Public Comment. Summary 

The public hearing on the Washington 

application for Phase I and Phase 11. 

Components A and B interim . 

authorization was held by EPA Reg-;on 

10 on January 25. 1983 in Seattle. The 

State participated in the' hearing at 

which there were approximately 50 

attendee•. In addition to a presentation 

by the State. two other oral statements 

were made. EPA Region 10 received two 

additional written comment, by the 

"close of the announced public comment 

period. February 1. 1983. Shortly after 

the close of the comment period. one 

additional written comment was 

received. This comment. like one other, 

focused on that element of the Shlte'. 

application wherein the State asserted 

jurisdiction to operate Us prograDl on 

'. Indian land•. 

or the four comments received within 

the prescribed comment period (two at 

the hearing. two in writing). three 

expressed general or specific support of 

a State program. The fourth comment 

(plul the one received late) objected to 

the State'. assertion of jurisdiction over 

Indian lands. The following i. a more 

detailed lummary of the commentl 

received and EPA'. resonse 10 the.e 

commenta. . 

One commentor provided a general 

expressi.on of the need for a Slate 

program to operate in addition to the 

Federal program to help clean up lite. 

which the Superfund. program i. not 

reachins. A aecond commentor 

exprelled qualified IUpport of the 

State'. prosram and noted that while the 

State program did not fully latisfy the 

organization beingreprelented. the 

State program on the whole i. viewed a. 

providing lafe and appropriate 
,}a,' . .,

. , ' . -.';• 

-; Federal Rp.~ister I Vol. 4S. No. 149 I Tuesday. August 2. 1983 I Rules and Reg-ulations 34957

management of hazardous waste. This . authorization to oper~te itl hazardous participating in the National Flood 

commcntor noted that upon approval of ·.walte pro8ram in lieu of Phase land Insurance Program (NFIP) and eligible 

the Shlte pr08ram. implementation Ph.,e II. Component. A and Bof the lor lecond layer insurance coverage. 

pro~11 would be monitored. A third bazardous wa.te pro8ram. except with Theae communities have applied to the 

commentor expresaed full .upj>ort for respect '0 hazardous waste activity on • program and have agreed to enact 

authorization of the Slate's Pro8ram. Indian land. which will remain unoer ceJ1ain nood plain- management 

The fourth commentor objected to the the Federal prosram. mealures. The communities' 

State's assertion of jurisdiction over participation iri the regular program Indian Jand~. notin8 that the State ha. Compliance With Ex~tiv.Order U.~1 authorize. the .ale of nood insurance to 

-'0 overcome" both Federal and State The Office of Mana8ement and Dudget owneu of property located in the 

law in order to achieve .uch jurisdiction. has exempted this rule from the communitie. listed. 

This commentor. and t1'e one .ubmittilll requirements of Section 3 of Executive ~FFECnvE DAT£!I The date listed in the 

late comments. each asserted the State Order 1231. lourth column of the table. 

does not in fact have authority to Certification Under the Regulatory ADDRESSES: Flood insurance policies for regulate hazardous waste on Indian Flexibility Act property located in the communities lands. listed can be obtained from any licensed EPA acknowledges the general and Pursuant to the provisions of 5 U.S.c. 

property insurance agent or broker • Ipecific lupport of the Stale's program. eo5(b), I hereby certify that this 

but points out that the hazardous wa8te authorization will not have a significant .~rving the eligible community. or from

program being consider'!d has no direct economic impact on a substantial '. the National Flood Insurance Program

(NFIP) at: P.o. Box 34Z94. Bethesda, bearing on implementation of current number of smoll entitie•. The 

Superfund clean-up activities which are authorization suspends the applir.abiHty Maryland 20034. Phone: (800) 6~:!0_

conducted pursuant to the of certain Federal regulations in {n'or of fOR FURntER INFORMATION CONTACT: 

Comprehensive Environmental the State program. thereby eliminating Mr. Richard E. Sanderson. Chief Natural 

Response. Compensation. and Liability duplicative requirements for handlers of Hazards Division (202) 287-0270. 500 C 

Act of 1980. another law. The program, hazardous waste in the State. It does not Street Southwest Donohoe Buildinljbeing offered by the Slate will operate· Impose any new burdens on small Room 505. Washington. D-C. 2Q.;7Z. 

in lieu of the EPA re~ulations under entHies. This rule. therefore, does 'not SUPPLEMENTARY INFORMATION: The 

RCRA, although EPA will retain require a regulatory nexibility analysis. 

• 

National Flood Insurance Program 

oversight responsibility and back-up Ust of Subjects m40 eFR Part 271 (NFlP). enables property owners to 

enforcement authority. With respect '0 purch~se nood insurance at rates made' the ~xpression of qualified support for Hazardous materials, reporting and rensonablc through 8 Federal subsidy- hi

the State program. EPA encourages - recordkeeping requirements. Water return. communities a~ree to adopt and citizen overview of authorized .upply. Intergovernmental relations. administer local flood plain pro~rams.. Penalties. Confidential business manaEement measures aimed at Before public comments were infonnation. pr.otecting lives and new construction 

received regarding the issue of State th from future flooding- Since the . Jurisdiction over Indian lands. EPA had Au ority communities on the attached list have concluded that the State', application This notice i, issued under the recently entered the l\'FIP. subsidized did not demonstrate adequate legal authority of the Solid Waste Disposal nood insurance is now availabl~ for authority for the State to exercise .Act a8 amended by the Resource property in the community. . jurisdiction over Indian lands. Contrary Conservation and Recovery Act of 1978 In addition. the Director of the Federal 10 the State's argument. EPA concludes and Solid Waste Disposal Act Emergency Management Agency 'hal 'f that RCRAand the aetOl8u"tbortzatlon--' Am~ndmentsof 1980, 42 U.S.C. 6901 et. Identified the special flood hazard areas _; do not convey to the State any authority leq., msome of these communities by 1relative to Indian lands jurisdiction. . Dlled: July 18.1983­ publishing a Flood Hazard Boundary ,t ~ather. Stales must independently Eroe.ta B. Bamn- Map. The date of the flood map. if one obtain IUch authority expressly from RegionalAdmini6tratDl'. has been published. i, indicated in the ,Congress or by treaty. The State hal Dot ~~ fifth column ofthe table. In the demonstrated such auL'lority and to I'Ued ...,-a:hI"l communities listed where a flood map EPA'. knowledge has not been STanted COOl .~ bas been published. Section 102 of the .uch a~thority; EPA. therefore, will e=============== Flood Disaster Protection Act of 1973. a. retain juri.diction for operatins the FEDERAL EMERGENCY amended. requires the purchase of flood Federal program on Indian landa in the MANAGEMENT AGENCY Insurance as 8 condition of Federal or . State of Wa.hington. lederalJy related financial assistance for ••4CFR 'art .. 

. Ded.loa acquisition or construction of buildings 

, (Dockft ~o. fEMA IMiI. In the .pecial nood hazard area shown I have determined 'bit the • 

Wathington State program i. on the mlp.

.ubstantially equivalent to the Federal u., of Communltle. Eligible for the The Director finds that delayed '. -Sale of Insurance Under the Natlona! . effective dates would be contrary to ,the 

• 

program for Phale I and Pha.e IL
 

Componenta A and B hazardoul wa.te
 Flood Insurance Prograrn;-Callfornia, public interelt. The Director also finds 

management. as defined in 40 CFR Part .. etaL that notice and public procedure under 5 

.271. Subpart B (fonnerly 40 CFR Part .. AGENCY: Federal ~eraency U.S.C. S53(b) are impracticable and 

_ unnecellary. 123. Subpart F): In accordance with -~ana8ementAaency, I 

.' Section 3006(c) of RCRA. the Stale of The Catalog of Domestic Assistance ACTlON: ranal nale. '. 

Walhinaton i. hereby pnted interim Number for thil program il 83.100 , aUMMARY: 11li. nale Ii.ta communitie. , ~ood Inlurance." Thil program i. 

.. 
r 

Exhibit I 4 

1../ v·· ". . u. S. EN V I R NMENTAL PROTECTION, .iENCY 

... 

~­ REGION X J • .... J

.'. 1200 IIITl« AVENUE 

.--'\ SEATTLE. WASHINGTON "'0' , .' 

-

# 

. 

U'LY TO 

An.. Of: MIS 533 

MAY 25 1983. Donald Moos. Director
 

Washington State Department
 

of Ecology
 Mail Stop PV-ll
 

Olympia. Washington 98504
 

Dear ~os: In looking ahead to final authorization of the hazardous waste program. the Environmental Protection Agency (EPA) has conducted a review of 

Washington's statutory authorities compared to those of the Resource 

Conservation and Recovery Act (RCRA).The purpose of this review is the 

early identification of areas where State statutes may not provide 

sufficient authority for final authorization of the hazardous waste 

program. since. once a State achieves interim authorization for any part of the program. final authorization must be achieved by January 1985 or 

the program reverts to EPA.' . 

By undertaking this early review of the statutory authorities. EPA's 

goal is to providE as much time as possible for the State to assess the 

aaequacy of specific statutory provisibns for purposes of final program authorization. Where statutory defici.encies-=are noted. whi ch requ ire 

changes. amendments will need to be secured during the 1984 legislative session in order for the State to be able to achieve final authorization 

by January 1985. 

EPA Region 10 staff initiated this review in January and provided preliminary comments to your staff. A more comprehensive review by both 

headquarters and regional staff has now been completed. Detailed 

comments summarizing the results of this review are enclosed. In 

conducting this review. EPA reviewed the Hazardous Waste Disposal Act 

(RCW 70.105). We are aware that amendments to this staute. pertaining 

to enforcement remedies, were recently passed. EPA also reviewed other 

State statutes which have or appear to have a bearing on authorities to 

implement an equivalent program, inclUding the Energy Facilities--Site 

Locations Statute• 

•
 
-2­ .. 

e· Some of ·EPAls comments identify inconsistencies within the hazardous 

waste statute which result in ambiguous authorities. Inconsistencies 

arise because the statute, as originally enacted. provided authority 

only to regulate disposal of extremely hazardous wast,s. These portions 

were not modified when amendments were passed in 1980.· For example. the 

statute defines the tenm -disposal- only as disposal of extremely 

hazardous wastei such a limited definition raises a concern'ab~ut

statutory authority to regulate disposal of dangerous wastes. A similar 

concern arises in light of the definition of -disposal siteltwhith is 

also limited to extremely hazardous waste. 

In some instances, EPA's concern is whether interpretations consistent 

with final authorization requirements can be given to certain statutory 

provisions which appear less comprehensive than corresponding RCRA 

authorities. For example. -dangerous waste" is defined in terms of 

materials being disposed of, whereas RCRA defines hazardous waste in 

terms of materials that may pose threats when improperly treated. 

stored, disposed of or otherwise managed. Another example is the lack 

of specific statutory reference to the regulation of waste generators. 

•
 

--The Hazardous Waste Disposal Act excludes radioactive wastes from its
 

juriSdiction. The exclusion of radioactive wastes from RCRA's juris­
 diction is limited to certain materials regulated under the Atomic
 

Energy Act. EPA's concern is whether the State has authority, equi­
 valent to RCRA. to regulate hazardous wastes which are also radioactive.
 

Where the Energy Facility statute (RCW 80.50) is relied upon as the 

basis for the regulation of dangerous wastes at energy facilities, that 

statute must provide authorities eQuival~nt to RCRA. In our opinion, this statute does not provide sufficient enforcement remedies (fines and 

penalties). The 1ad< of any reference to hazardous or dangerous wastes 

in this statute causes a general concern about the adequacy of this 

statute to support an equivalent program for energy facilities. 

In addition to the detailed comments, a checklist is enclosed which 

identifies all authorities necessary for final authorization. While 

many of the comments noted in the enclosure may be able to be satisfactorily addressed by the Attorney General in the State's application. 

we encourage the State to use the checklist and to carefully review all 

the issues noted in EPAls comments to determine whether any authorities 

appear insufficient for final program authorization. In addition. where 

statutory authori ties are unclear, EPA encourages' the State to consider 

seeking legislative amendments so that questionable or ambiguous 

authorities will not pose obstacles to final authorization or to the suc~essful implementation of the program in the future. 
-,• .
 

-.

•
 

•
 

4 

\. 

-3-

Ted Rogowski, Office of Regional Counsel (206) 442-4232), and Betty Wiese, Waste Man~gement Branch (206-442-2857), questions or provide assistance. 

Sincerely, 

~~(Ut-.

L. Edwi n CoateActing Region~l Administrator 

Enclosures 

cc:	 Earl Tower, Headquarters, DOE 

Tom CooK, Headquarters, DOE 

are available to ~nswer

Charles Douthwaite, Assistant Attorney General
 

•
 
-,

.;

. , 

.. ·· 

.:-

.., ".J REVIEW OF WASHINGTON •," 

'.	 

STATUTORY AUTHORITIES FOR FINAL AUTHORIZATION REQUIREMENTS 

I.	 Hazardous Waste Management by the Department of Ecology 

(Hazardous Waste Disposal - Revised Code of Washington (ReW) 70.105) 

1.	 Defini.tion, of. Disposal RCW.70.• 105.0l0t!l 

The	 definition of -disposal· is limited to extremely hazardous 

waste; however. the term is used in various sections of'the 

statute in referring to dangerous wastes. The Environmental 

Protection Agency (EPA) recommends the State seek statutory re-definition of the term to include all dangerous wastes. If 

not, the State will need to demonstrate that the limited 

definition·does not restrict authority to regulate disposal of 

dangerous wastes. 

Secondly. the State will need to assure that.the definition .of 

disposal captures all of the practices and effects covered by 

the Resource Conservation and Recovery Act (RCRA) definition of 

disposal at Section 1004(3). 

2. Definition. of disposal ,si.te RCW 70.105.01.0(3) 

• 

-Disposal site- is defined as -the site at which extremely 

hazardous waste is disposed in accordance with the chapter." 

It is not clear how this limited definition relates to the 

general authority of RCW 70.105.130 to regulate disposal of 

dangerous wastes. For example. under RCW 70.105.070, disposal of dangerous wastes at the lithe site prov.ided under this 

chapter" can only occur by satisfying certain conditions or by demonstrating that an lIemergency and potential threat to the 

.public health and safety exists." The Attorney General should 

be prepared to discuss how these restrictions relate to the 

State's general authority under RCW 70.l0S.l30(b) to promulgate regulations for the treatment. storage and disposal of dangerous wastes. 

3. pefinit~on of dangerous was~e RCW 70.l0S.QSO(5) 

The statutory definition of dangerous appears less comprehen­ sive than the RCRA definition of hazardous waste at Section 

1004(5). in some respects as discussed below. If the State's 

authority does not capture all the materials RCRA authorizes 

EPA to regulate. statutory amendments would be necessary. 

The State's definition includes only materials disposed of. where~s RCRA includes wastes which may pose a threat when 

improperly treated. stored, transported. disposed, or otherwise 

•	 

managed. The extremely hazardous waste definition at RCW 

70.105.050(6) is similarly tied only to disposal. 

-1­
• ''-__''_'- •• __ ._,. 0.-'__.·_ ··.0­

'.
 In addition, under RCRA's definition at Section 1004(5), EPA is
 

empowered to regulate materials which may cause certain . effects, including significant contribution to an increase in at~

1IIQt..t.al1ty or. ler10~s illness. It is not clear that the . .L ~ci I. 11 ,. 75 State's definition captures the same effects. -Sf[i.. Ttl. ~'. /.~.J(

. . '" ~,,-1t~

It is unclear to what extent the definition of dangerous waste t 

authorizes regulation of recycled wastes in a manner equivalent 

to EPA's. since dangerous waste is defined in terms of discarded, abandoned, useless or unwanted materials. 

While the RCRA statutory definition of solid waste at Section 

1004(27), of which hazardous wlste is a subset, uses the term 

-discarded" without specific reference to recycling. other 

definitions identify recycling as part of solid waste management (see RCRA Section 1004(29) and (30». The Washington 

statute does not appear to provide similar evidence of an 

intent to include re-used or reclaimed:materials within the 

danagerous waste jurisdiction~ The Attorney General should 

also discuss whether the definition of disposal, in its 

reference to recycling of wastes once discarded, expands or 

limits the State's authority to regulate wastes that are used 

or recycled. 

• 

Finally, the statute does not define dangerous wastes as solid 

wastes. The State must assure it has authority to cover all 

types of waste found in RCRA's solid waste definition at 

Section 1004(27). The Attorney General should discuss whether 

the absence of a statutory definition of solid waste limits the 

State's authority to adopt dangerous waste regulations wherein

solid waste is defined and wherein dangerous wastes are 

identified as solid waste (WAC 173-303-070(1». The State 

should also discuss whether the presence of a statutory definition of solid waste in another statute (Solid Waste 

Management Act--RCW 70.95.030(9» limits the State's authority 

to use a broader definition of solid waste in the dangerous 

waste regulations (WAC 173-~03-040(78».

4. Identification and Listins 

States must have authority to identify hazardous wastes by list 

and characteristics, equivalent to that provided by RCRA 

Section 3001(a). RCW 70.105.020(1) only specifically authorizes 

designation of EHW by characteristics. The Attorney General 

may be able to demonstrate that the broad grant of authority at 

70.105.130 includes authority to identify wastes (both dangerous wastes and extremely hazardous waste) by list and by 

characteristic. 

• 

s. Generator Regu~.rements

The statute does not appear t~. provide authority to regulate 

-2­
• 

.,"	 '" • 

':'" 

.... generators of dangerous waste. The Attorney General may be -. able to demonstrate that the broad grant of authority in RCW 

70.105.130 provides an adequate basis for regulations requiring 

generators to designate wastes and to adhere to standards • equivalent to EPA's. If the existing statute does not provide 

sufficient legal basis for promulgation of generator requirements, statutory amendments Would be necessary•. 

6. M~nifest Ipd Tr~nsportation Requirements, 

Section 70.105.130 provides authority to establish a manifest 

system, but does not specify that such system shall be consistent with Department of Transportation (DOT) requirements as 

does RCRA at Section 3003(b). The State may be able to assert 

that the broad grant authority to establish a manifest system 

includes authority to establish a system consistent with DOT 

requirements. 

• 

A separate State statute--RCW 46.48 Safety--addresses transport 

of ·hazardous materials· and establishes State Patrol authority 

to adopt and enforce the regulatory provisions of DOT 49 CFR 

100-199 as they apply to motor carriers. The State will need 

to explain whether the State Patrol will implement any portion bf the dangerous waste program. .Further, the Attorney General 

should discuss whether the DOE is bound by the lesser penalty provision in RCW 46.48.175 in the event a dangerous waste 

program requirement also constitutes a state patrol requirement • 

7. Treatment, Storage, Oi sposa,l Standards 

The Attorney General should be prepared to discuss whether RCW 

70.105.050 provides an exemption which.allows for the processing (reclamation, treatment,'detoxification, or neutral- ._ 'ization)	 of extremely hazardou.s wastes at sites o.ther than - (t:1--( L~~t't'

those "established and approved for such purpose" under ~it~tprovisions of RCW 70.105. f ,. /·:77 _. ,.. : c(.<..v<..., _ IL. (C ).. . /,. 8•. Permitting Requirements	 :~{.':, ~"';f ~,!J'~u..tI~

States must have authority to modify, revoke and re-issue and f(u~~: ,.6-7. 

terminate permits for certain causes as specified in 40 CFR I 

122e15 and 122.16. The Attorney General should be prepared to 

explain whether the broad grant of authority in RCW 70.105.130 

to establish a permit system includes authority to modify, 

revoke, and issue, and terminate permits as specified in State 

regulations at WAC 173-303-830(3) and 173-303-825(4)(the

State's analog to 40 CFR 122.15 and 122.16). 

Assuming RCW 70.105.130 does provide authority as dis~ussed

above, the State should discuss whether the proposed new 

•	 -3­
'.
 section RCW 70.10S.09S{2). if enacted, would restrict this
 

authority by allowing DOE to revoke a permit for noncompliance 

\nl Y after a compliance order is issued and the permittee fails 

o comply with such order. 

There is no specific authority in the statute regarding public notice and hearing procedures· in the permit process as speci­ fied by RCRA 7004(b)(for example. informal hearings upon

request, radio broadcast ~f notice, etc.). Although States may 

address these requirements in regulation, the State must assure 

that ~hese procedures are in accord with State statutes, 

including the Administrative Procedures Act. 

9. Enforcement . Authorities . . -,.Criminal

In RCW 70.105.090 of the statutory amendment, any violation of 

the chapter or implementing rules constitutes a gross m1Sdemeanor. The State will need to assure the implementing regulations identify the specific prohibited actions identified 

in 40 CFR l23.9(a){3){i»B) for which criminal sanctions must 

be available. 

States must be able to seek the maximum fine of $10,000 for 

each day of a continuing violation. The Attorney General 

should be prepared to discuss whether the ROW 70.105.090 

language regarding Aseparate and distinct violations" provides 

authority to seek fines for each day of a continuing violation. 

10. Authority for Hazardous Wastes which are also Radioactive. 

The Washington hazardous waste statute excludes radioactive 

wastes from its jurisdiction. RCRA's ~~atutory exclusion of 

radioactive wastes from the definition of solid waste at 

§1004(27) is limited to Nsource, special nuclear or by-product 

material as defined by the Atomic Energy Act of 1954." With 

the exception of these materials, States must be able to 

regulate any hazardous waste regardless of whether the waste is 

also radioactive. The State will need to demonstrate authority 

to regulate hazardous waste which are also radioactive in a 

manner equivalent to RCRA, either by DOE or through other 

agencies and authorities. Secondly, States which impose bans 

on the importation of hazardous wastes will not be considered 

consistent with other State programs, one of the pre-requisites for final authorization. Initiative 383 (RCW 70.99), if found 

constitutional, would appear to be an importation ban if the 

initiative applies to hazardous wastes which are also 

radioactive. 

11. Inspection Authority 

• The State must have the authority to inspect those places where 

-4­
I 

"'•.;••"\,0-... __ ,. ~-------_ ••------------_•...__• - -::--:: "-'---':'::.:: ~: ••• 

', .

.,. 

.... records Ire kept (40 CFR l23.8(c». The'Attorney General 

should be prepared to discuss. IS was done for interim authorization. whether the language at RCW 105.130 (20)(d) referring 

to -establishments regulated under this section- includes 

pllces ~here records are kept. 

Ab111tyto Share. Jnforma~io~ w1~~ EPA 

The State must have the ability to share 1nfonmation wi~h EPA 

;, /l,,~./' . without restriction. including information claimed to be Jt.t P" ~ol(4LJ,(( confidential (RCRA §30S7(b) and 40 CFR 123.10). The Attorney ..~' dA·~ General should discuss. IS was done for interim authorization. 

~a·rC' . t' ;:N-1'~ how R,CW 43.21A.160 does not limit the States ability to share ~.~ all information with EPA Ind whether RCW 42.17.330 will
 

l~';v:'... d " .~n'!f!Cantl~ restrict EPA's access to information.


[) \ 13. Public Participation in the Enforcement Process . 

~...-

The Statute does not allow intervention as reQui~)f 40 CFR 

123.9(d). The State may elect to use civil rulel29~ .coupled r' 

with the appropriate assurances from State enforcem~t official 

in the MOA. to satisfy this requirement. 

II. Haz.a.rdous Wa.s.te Regul.ation at En,ergy Facilities (RC~ SO.sot 

• 

For purposes of final authorization, the State must have authority 

to regulate, in an equivalent manner, all hazardous waste activities 

covered by the Federal program regardless of jurisdictional authorities. and regardless of whether these activities currently occur in 

the State. 

Assuming that Energy Facility Site Evaluation Council plans to use 

DOE's regulation, the State must include in its application discussion of how RCW.80.50 provides legal authority to adopt and 

enforce the full set of dangerous waste regulations. In addition, 

EFSEC must have authority for all general program requirements in 40 

CFR 123. Subparts A and B. General program elements include. for 

and "example: a compliance evaluation program. including adeQuate 

inspection authority (40 CFR Part 123.8); full enforcement 

authorities (40 CFR 123.9); and sharing of confidential information 

with EPA without restriction (40 CFR 123.10). 

EPA notes certain provisions within the energy facility statute 

• 

. where authorities appear insufficient for final authorization or 

where it appears it may be difficult for the State to conclude the 

existing statute provides requisite authorities or coverage for 

final authorization. These specific comments are provided below. 

If the Attorney General cannot find adequate basis in the existing 

statute to to impose all general and specific program requirements 

at energy facilities, statutory amendments will be necessary to 

support an application for final authorization• 

-5­
l.t ... 1. Scope of authorities 1'- •

The defin1t'on of energy facility at RCW 80.50.020(10)(b) excludes facilities operated by the military or by any other • agency for national defense purposes. If such facilities

include hazardous waste activity, there is a need to assure 

such activity is subject to the State's dangerou~ waste program by some means. 

The statute at ROW 80.50.020(6) specifically exempts common 

carriers, railroads, and motor vehicles from EFSEC regulation. 

To the extent that such carriers were hazardous waste transporters, the State needs to assure that the activity is subject

to the State's dangerous waste program by some means. 

2. Financial Respons1blity 

RCW 80.50.071 relates to payment of fees by applicants for 

certification. The State should discuss whether this authority 

or the broad grant of authority to adopt regulations (RCW 80.50.040(1» extends to imposition of requirements for 

maintenance of funds for facility closure and post-closure care 

and for liability insurance. 

3. fermittin9 Proce~~r~s

•	 States must have authority to modify, "revoke and re-issue, and 

terminate permits for certain causes as specified in 40 CFR 

122.15 and 122.16. The State should be prepared to discuss 

whether the statute provides requisite ~uthorities for permit 

modification revocation and re-issuance, and termination. 

The statute's general authority to conduct public hearings may provide sufficient authority to promulgate regulations equi­ valent with the RCRA requirements, including those of RCRA 

Section 7004(b) with respect to public participation in the "permitting process. Two possible exceptions are: 

a).	 RCW 80.50.090(1) and (2) require a public hearing to 

be held within 60 days of receipt of an application. 

If approval decisions are made at that time regarding the location of an energy facility (with associated 

hazardous waste treat, store, dispose activity) which 

are the subject of 40 CFR 264 standards (such as 

floodplain or seismic standards), RCRA requires development of a draft permit proposing conditions 

relative to those standards. There must be a 45-day 

comment period on the draft permit. The State's 

60-day requirement appears insufficient to develop a 

draft permit for location standards, conditions, and 

•	 

to provide the requisite 45-day comment period • 

-6­
I 

'.. 

.,	 

b). The State will also need to determine whether . contested case hearings, requirements, and procedures 

are consistent with theRCRA permitting procedures, 

Section RCRA 7004(b). • 

4. Enforcement Remedies 

The Attorney General must assure that the State satisfies the 

requirements of 40 CFR 123.9 with respect to enforcemen~

authorities. The existing statute does not appear to meet 

these ~equi~ements as follows: 

a).	 Authority to assess or to sue to recover civil 

penalties in at least the amount of $10,000 per day 

-of violation (40 CFR 123.9(a)(3)(i)(A». For 

continuing violations, the State must be able to seek 

at least $10,000 for each day of violation. 

b).	 Criminal penalties (gross misdemeanors) appear insufficient in light of 40 CFR l23.9(a)(3)(i)(B)

wherein the State must be able to seek criminal fines 

of at least $10.000 for certain program violations. 

For continuing violations, the State must be able to 

seek at least $10,000 for each day of violation •. 

• 

5• Entry Authority 

RCW 80.50 is silent with respect to entry authority. The State 

must assure equivalent authority to enter, for inspection 

purposes. any site or premises subject to the regulations or 

any site at which records relevant to program operation are 

kept. even if records are kept at a site other than the 

certified energy facility site•. 

•	 -7­
) 

, . 

CHAPTER 2.7 

STATE LEGISLATION CHECKLIST 

Introduction 

. The checklist which follows is provided to aid attorneys and others in 

reviewing and documenting State hazardous waste enabling authority for Final 

Authorization under Section 3006(b) of the Solid Waste Disposal Act, as 

amended (RCRA). EPA attorneys are encouraged to involve attorneys in State 

Attorney Generals Offices or other State legal counsel in such reviews. 

States are advised to look broadly to their legislative authorities in 

assessing their programs. 

To obtain final authorization, a State must have the enabling authority 

to establish a hazardous waste· management program which meets the 

requirements of 40 CFR Part 123, Subparts A and B. Anyone using the 

check.list should refer to Part 123 (and the regulations in Parts 122, 124 

and 260-265 to the extent they are referenced 1n Part 123) for a full 

understanding of the regulations forwhi ch a State must have enab1i ng 

authority. 

Attorneys should 'look at all relevant State statutory authority, net 

just a particular statute, when assessing State hazardous waste legislative 

authority. For example, State administrative procedure acts are eften 

relevant. Most elements in the checklist .identify enabling authority 

required for Final Authorization. Three elements, however, C'importation 

ban", "variance provisions" and "exemptions") are included as a means of 

identifying and recording features of State law which may negatively affect 

a State's ability to receive final authorization. 

This checklist is intended for use as an evaluation tool and it 

provides valuable assistance to EPA reviewers if submitted as part of the applica~ion for Final Authorization. Also, this checklist. should be of use 

to the State in identifying appropriate citations and comments to aid in 

developing the Attorney General's Statement which is an essential element of 

the application. 

".. : 

•
(

2.7-1
 
------

------

------

------------------- ----------

~·I ........
 

l 

."

STATE LEGISLAilCN CHECKLIST •	 State ------------------------------------­ Tit1e(s) of Legisletion	 Da"te Enacted 

Date Enacted 

Date Enacted 

Reviewed by	 DATE 

COVE RAG: 

STATUTORY ELEMENT STATE CIi'E YES/NO? 

OEFINli'ICNS 

The State needs ~he au~hority to cefine the icliow;ng tc~~s in a manner a~ lecs~

as stringent as the Federal program. If definitions cf these terms appear in 

State statutes, they must be et least as stringent ~s the c~a1ogcus Fede~a~

Statutory or recu1atorv definition. 

• Di50o~al	 t.: 

Ge~e:--ato~

Hc::ardot.:s ',\aste:lt 

~iani fest 

Person 

Storace 

Transport 

Trea'tment 

Treatment, Storage or 

Disocsa1 Fec~1i':...,rl 

West! (Solic) 

•	 Note that tne £tate ~~st have authority tc reguiate the recycling a~d reese of 

h2zaroous waste ,n e manner et least as str1ncent as·the Feder!' or~cram cces. 

HAZ~RDCUS WAST~ !DEN7!FICAT!CN AND LISTING - (See 40 CF~ §123.33J 

Authority for:	 \

Ie	 ( 1. HW :h!recteri!t~cs

2. ~'W ';s~

2.i-2 

I 
•• 

: \ . 

·STANDARDS FOR GENERATORS - [See 40 CFR 5123.34) 

r

•	 

COVERAG.E 

STATUTORY ELEMENT	 STATE CITE YES/NO? COMMENT 

The State needs the authority to regulate all generators EPA regulates under 

40 CFR Part 262. 

Authority to promulgate 

regulations on: 

1.	 1.0. Numbers 

2.	 Requiring generator to 

determine whether waste 

is hazardous 

3.	 Recordkeep;ng practices 

4.	 Packaging, labeling, 

marking and placarding 

practices 

5.	 Use of appropriate 

containers 

6.	 Furnishing information 

• 

7. Use of manifest consistent with DOT and EPA 

B.	 International Shipments 

9.	 Designation of and delivery 

to oermitted facilities 

10.	 Investigation of unreturned 

shipments 

11. Submission of reports 

STANDARDS FOR TRANSPORTERS - [See 40 CFR§123.35J 

The State needs the authority to regulate all transporters EPA regulates under 

40 CFR Part 263. 

Authority to promulgate 

regulations on: 

1.	 I. O. numbers 

2.	 Recordkeeping 

3.	 Labelino rl 

4.	 Compliance with 

manifest system 

5.	 Spill notification 

6.	 Sp;l' c'ean-uD 

2.7-3
 
•• 

t . , i 

.'	 COVERAGE 

STATUTORY ElE~ENT	 STATE CITE· YES/NO? COMMENT 

7.	 Transpor~aticn to
 

perm;t~ed tac1litv
 

8.	 Consistency with
 

DOT reoulat1ons
 

STANDARDS FOR HW STORAGE. TREATMENT. AND DISPOSAL FACILITIES ­ [See 40 CFR 1123.36J 

The State.needs the authority to reguiate all of tne owners ane c~erators or 

hazardous waste manacement facilities whom E?~ reoulates. 

Authority to prcmulgate 

regulations on: 

1. 1.0. numbers 

2. Reccrcl<ee~inc

3. Recortinc 

4.	 :~oni tcri no 

wi 

l • inscec~i:io

..... 6.	 C~mpl'i~nce with
 

~er.i'fest. svstem
 

7.	 C:e~c.~ir.c 7.e:~,cds

':I

....	 Lcc~tion. cesigri.
 const~uc:i:in
 

0 Cont i ilC€ t'!C'J -;ians 

10.	 Tra;r.;nc 

11. O',.mershi 0 

12.	 Closure an~ PostClosure activities 

,

_0;.	 Continuity of 

ooeration 

14.	 Financ;al 

resocns;ei';~'1

25.	 Genersi cor.oiticlis (see 40 

CPR -~'22 - '2' 2Q r. S~_ ., c:":C __ . )

PERMITS FOR HW STORAGe. TREATMENT AND DISPOSAL FAC!L!T!ES - (See 40 eFR §:23.7 

ane 123.37J . 

• 

1. Require Ferm;ts for owne~s
 

and operators of all TSO
 fac~'~ties ( 

2.7-4
 
-·11 

~...l .. 

( .. 

COVERAGE 

STATUTORY ELEMENT	 STATE CITE YES/NO? COMMENT 

3.	 Prohibit oper.tion of
 

facilities without permits
 

(State may have an analogue
 

to interim status)
 

4.	 Require permit
 

application information
 

6.	 Provide for permit modifi­


cations and termination
 

(revocation)
 

7.	 Allow public disclosure of
 

name and address of permit
 

apol1cants and permittees
 

2.7-5
 
-oN 

...... 

<. 

COVERAGE 

STATUTORY ELEMENT . STATE CITe Y:S/NO? CC~~EN"

3. Obtain civil penalties for 

any violation (maximum no 

1ess than SlOK oer day) . 4. ODtain criminal penalties tor ~pec1tied v1clations (maximum 

no less than $lOK .per d!y and 

imprisonment with maximum no 

less than six months); burden 

ef proof no greater than under 

Federa1 1a~'

5. Allow intervention 

(see 40 CFR §123.9(d)) 

MISCELLANEOUS 

1. Authority tc share eli 

1nfo~rr.at;on with EPA 

Z. Va~iance orcvisions­

• 4. Exe~oticnsllt
 

May c~eate prcble~5 fer a St~te seeking aut~cr~z~:~cn.
 

• 

2.'''5
 
Exhibit 5 

) 

~' \ .... 

.

•

', 

•
 

•
 

&. 
'.
 

•
 

_ a _ ••~._.......-... • ••
 

/ 

DGJIOISD IDAft .'LL .,. .'07 

as &aCDJ)D 'T 'I'D mull 

It.t. of " ••hiagtoa t'th Leti.1.ture 1tlf aegular ....iOD 

by S••alon lluigh••, Lee, ".1884,••Dd IIcDereott: b)' Departaeat of 

kolOU reque.t 

.ead fir.t ti.. J.auarr 17, 1"., ... r.f.rred to eo..ittee 01 .arks •. kolOU· 

1 a. ACT ..lat'D9 to ha.ard~ •••t.: ...Ddia, ••ctioa '. ckapt.r 

2 101, La•• of It75-'7' 2" .a , ..eadad by .ectioa J. ckapter 

J 172, La.. of stl) .Dd acv '0.101.0to, ..adia, .actioa 2. rka"ter 

4 270, La.s of l"J .Dd ae- '0.10S.I.5; ...adia, .ectioD 11, 

5 chapter 101, Law. of 1'75-'" lad ad acv 70.105.110. 

, 81 '" IIIACTD 'T nm LIGISLA'nJRZ or 1'1:1 .,.Aft or WASHU'G1'OII: 

Sec. l. Section " chapter 101, Law. of 1'75-'76 2Dd .....s•. 

3S a.eDded br ••ctioa I, chApter 1'1, Law. of I'll and Rev 70.105.090 

, are each a.ended to r.ad al fol10-8' 

.~ 'I ~itloa to the peaaltl•• 18pOied pgr.uaat to Rev 70.10~.010.

11 an) persoD who .•Iolat.. .a, pro.l.loa. of this chapt.r, or of the 

&& rules iwpleaenting this chapt.r, aad a.J persoa who knowingl, ai1. or 

Jl abets another in conducting anr violation of any provi.ion. of t\i. 

'4 r.hapt.r. or 01 the rul.s i.pI•••ntiDI tbi. chapt.r, shall ~. guilty 

~~ ot a gross .lsde.eanor aDd upoa con.iction th.r.of .hall be puAished 

1. by a fia. of Dot 1••• than ODe ~re4 dollars nor 801'. thae t.D 

11 thousand dollau,and/or by lllprho....t la the couat, ian for 80t , 15 .ore thay one y.ar, for .acll ••parat••lohtiOD. Each and .ve,., sKh 

,. cas. of 

20 continal..! .iolation, •••ry 4al'~ coetlftuaac. Ihall be a ••parat. aad 

21 di,tinct off••••• 

~2 sec. I. S.ction 2, chapt.r 270, La.. of 1"1 and acw 70.105.1f5 

21 are each a.eaded to r.ad •• foll~1

2f _ Wolvlthllaftdla! any oth.r provl.loa of chapt.r 70.105 .cve the 

~.p~i'tiieat"'~'of~«6nJtJ'-lr.A itipO••'iiI to Pirtrcr;;t. fuU, iD a84 ia

26 eDpow.r~ to .sal.i.t.r .11 a.peell 01 the progr... of the fed.ral 

~~ R••ouree eo•••rvatloa .Dd a.coYer, &ct, •• It ••i.t. o. (,"I,-'fr 

21 Itll)) the .f'eetS•• date of till. ,'.f !!fadatory act, et2 ••••C. 

-1- lSI ~f07

•
 
•
 

, 

;~

I.:" 

.\.--' 

lee. 2 

" #	 1 S.c. "01 .t .eq.). coat..,lated for participatio. aad adaiai.tratio. 

2 ., a Itat. uad.r ~t act. 

3	 lec. J. I.ctlo. 11, Chapt.r 101, LaVl of 1'75-'7' 2ad . 

• aad ICV 70.105.110 ar••ach ...aded to r.ad a. foil...: 

5 (1) With the ••c.ptla. of sab.actio. (2), .othiog 'a this 

, chapt.r .hal1 a,.lJ to ••J radloactl...a.t. or radloacti....t.rial. 

" 7 U) IIothi., I. till. cUpt.r ahall alt.r, ..ad, or superaacs. the 

• proyi.io•• of chapt.r 10." acw, (aa--"'--"'ati••--er--h.r••ft.r 

9 .......;--.r--.r••t--t.-th.-'.'.rt.ea.~-te- -..li.-•••t.-...i·.rr 

10 e~itt.e-a.7--a.~rttJ--ret.r.i••--...-- l.ti..T--e.rtifi~.ti..

11 eoftstr.etio.7--.r--.iti••-..-th·....I-pewer- '.;-••-••fi.e4-'.-.aeh12 .et.» ••cept that, Dot.lth.t.adl.,· a., pr09l.loD of chapt.r 10.50 

11 RCV, regulation of dang.roa. ~a.te•••Ioci.ted with energy facilities 

)4 froe ,en.ration to di.po.al .hall be 101.1, by the d.part.ent 

I. the f!pl.-entatioD cf .aid 

~~ s&ctioD, the depart-.at shall consalt aDd cooperate with the .e.rgy 

.~ ~acilitr .it••val~tlo. council lad, I. ord.r to reduce dupllcatioD 

Ii of effort aad to provide .ec•••• coordiaatlo. of eo_ftoriD, aDd 08­

~\ site inspection prograa. at ••erit facility .it••, a.y oD-.ite 

20 iaspection by the departaeat that aar required for the purpose. of 

~his chapter shall hi perfo~ed. pursuaat to an hter~gency

..1 ~29rdination agree-ent with the council. 

2) (I) To facilitat. the I!pl...atatlo. of this chapter, the en.rgy 

24 facility eita .vaIuat'en council .ayrequh. c.rtUica·.• hold-.r. to 

~5 !~v. Ire- their en.rQY f.~lllt, ,lte. aDI dangerous wa~ta~,

26 !=onholled by this chapter, within gID.'1 ••Y8 of their generation • 

• •• the S.nat. ~rch ., 19••• 

#ff.~G~ J( 

Approved Karch 21 • 1914 

F'LED 

h .. 1{gij;:£:: 

MAR 17 814 r~. U01	 -2-

U/,~ ........
 

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J. 

•... ~-:-'.T"To;.--·I--.., __,....,.............- . ~~~t ......... ·._-_'1·, .. ~:- .-.-....'"'1't!I'"::"'='_."-'O _ ............. -,-.._-_.~._
.

!:xhibit 6 

, Ch. 2'54 REGULAR SESSION 

- .... ,~ ,-' -. -. ,... . l' 9 1 f \ " '.:." !.. .•.•.'.:'"'' - \ ••• ,,: '.. • • ". . .. . " .. ~. ...,: 

A_: ....• . - ' : 'DAN'GEROUS WASTES~riISPOSAL '. '-..:I· • 

•• ...: .:.- .": 1. :. : •... .: : .. ,. .. ~.' . . I ". ."; '. . ..' ..

. . • :~'::' .. J'" CHAPTER 254 _...''':. j ~.:,. ,';.',;­ •... .­ .':. HOUSE BILL NO. 1438 -.. - ....... ;:. ;.: ~.,.....,.: .... , ... ;''' .. !... .... ..:,,: ,I," .; _ ' • .-:' ... "; \ ::. .-., ..
 ". t';' 

AN ACT Relating to dangerous vastes, amending section 2, cbapter 

70, Laws of 1983 1st ex. sess. and RCW 70.105.160; and adding • nev ,;" '.::' 

section to ,chapter 70.105 RCW. 

BE IT. ENACTED BY TH~ LEGISLATURE or THE.STATE OF WASHINGTON: 

t . . . • . . ': ~. i ': ti •.. ..: ,.. ., ... '. • . . . . • .. 

NEW SECTION. ·Sec. 1. There' is-added-to chapter 70.105 RCW a n~w

.'.. ··'.·"0 ... : I .. 

section to read as follows: . . .:... " . (1) 'Independent of the processing or issuance of any oro' all 

fede~~Y, state, ~nd' locai: pecmi ts fo~"disposai of dangerous vastes, -.. .. ­ no disposal of dangerous vastes at a conunercial
 

"disp~sal' f~ci1it}/ may be undertaken' p~'ior to July 1, i986, un"less:
 

(a) The 'disposal results from actio~s taken· under RCW 70.10SA.060 

(2) and (]),'or results from other eme~9~ncy situations: or 

"(bi Studies undertaken ~Y the department'under RCW 70.105.160 to 

determine' ih~'be~t:~an~~~me~i ~r~cti~;s fo~" various ~aste categories 

under the 'priority vaste management methods established in RCW 

70.105.150 are completed for the particular ~astes or vaste 

categories to be disposed of and' an~· regulatory revisions deeffied 

necessary by the department are proposed and do not prOhibit land 

dlsposal of such wastes: o~

(c) Final r,gulations have been adopted by the department that 

allow for such disposal. 

(2) Construction of facilities used solely for the purpose of 

disposal of vastes that have not met the requirements of subsection 

(1) of this section shall not be undertaken by any developer of a 

dangerous waste dispos~l facility. 

(]) The depart.~nt shall prioritize the studies of vaste 

categories undertak~n under RCW 70.105.160 to provide initial 

Addition. in text are indicated by ynderlin,; deletions by ••,ikIIW" 

1942 

cons 

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ahal 

the 

by J 

of r 

rule 

RCW 

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:tion 2,. cbapte.r 

S adding a nev .\ .. - .. 

INGTON: 

;.- ...:. 

70.105 RCW a nev 

ce of any or .' all 

ngerous wastes, 

1 off:site iand 

i986" uniess:: .. 

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ns; .... I 

W 70.105.160 to 

waste categories 

;blished in RCW 

'astes or ",aste 

'evisions deemed 

lot prohibit land 

department that 

~r the purpose of 

» of subsection I, 

1y developer of a . 

Jdies of waste 

provide initial 

f &trikeeutB

, 

." 

... ,....: 1984 LAWS .:::. Ch. 254 

'cons'ideration of ,those:.C.1legories' most .likely to be suitable for ..land 

disposal•. Any regulatury changes deemed necessary by the .department I 

shall :. be proposed .,and s~bjected to "~he rule-making process by 

category as the study of each vaste category is completed. ,All of 

the .study ~hall be completed, an4 implemen~ing regulations proposed, 

by July 1, 1986. .,. 

(4) Any final permit issued' by the department before 'the adoption . .:... .... of rules promulgated.as a result ~f the study conducted under RCW 

70.105.160 shall be modified as necessary to be consistent vith such - . - '.' . . . - ~. ~ ~ ;'.' 

rules. 

Sec. 2. Section~, chapter 70, Lavs of 1983 1st ex. sess. and 

RCW 70.105.160 are each amended to read as follows: 

The department shall conduct a study to determine the best 

management practices for categories of waste for the priority waste 

management ! methods established in RCW 70.105.150, with due

consideration in the course of the study to sound environmental 

management and available technology. As an element of the study, the 

department shall review methods that will help achieve the priority 

of RCW 70.105.150(1)(a), waste reduction. Before issuing any 

proposed regulations, the department shall conduct public hearings 

regarding the best management practices for the various waste 

categories studied by the department. After conducting the study, the 

department shall prepare new rules or modify existing rules as 

appropriate to promote implementation of the priorities established 

in ROW 70.105.150 for management practices which assure use of sound 

environmental management techniques ·and available technology. The 

preliminary study shall be completed by July 1, 19B6, and the rules 

shall be adopted by July 1, 1987. The solid waste advisory committee 

shall reviev the studies and the nev or modified rules and submit 

recommendations to. the legislature by January 1, 1988, re.garding 

policy options (such as fee incentives, disposal bans, etc.) that 

Additions in text are indicated by underline; deletiona by .t'ik...... 

1943 

..: . "'). 

...."... 
CIl. ·254 REGULAR SESSION 

vi·ll -, ,be used to reduce·' the production of .dangerous and extremely '. . hazardous waste in Washington state. ,.'<,."> ':'. 

~: '·The ~tudies shall be updated at least once every five years. The 

:funding for these studies shall be 'from the hazardous waste control 

.and elimination account, subjec~ to legislative appropriation. 

NEW SECTION. Sec. 3. If any provision of this act or its ., .. • ;'1 

applicat ion to any person or circumstance is held invalid, the -.~

remainder of the act or the application of the provision to other 

persons or circumstances is not affected. . . 

Approved March 28, 1984.
 

Erfective June 7, 1984, 90 days' after date of adjournment:
 

CLEAN AIR ACT-VIOLATIONS-PENALTIES 

CHAPTER 255
 

SENATE BILL NO. 3193
 

AN ACT Relating to the Washington clean air act; amending section 

61, chapter 238, Laws of 1967 as amended by section 1, chapter 176, 

Laws of 1973 1st ex. sess. 'and RCW 70.94.430: and amending section 

53, chapter 168, Laws of 1969 ex. sess. as amended by section 2, 

chapter 176, Laws of 197) 1st ex. sess~ and RCW 70.94.431. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 

Sec. 1. Section 61, c~apter 238, Laws of 1967 as amended by 

sectioD 1, chapter 116, Laws of 1973'1st ex. sess. and RCW 70.94.430 

are each amended to read as follows: 

Any person who violates any of the provisions of this chapter, or 

any ordinance, resolution, rule or regulation in force pursuant 

thereto«7---other--thaft--R€W--~9~94~~9S7» shall be guilty of a 

misdemeanor and upon conviction thereof shall be punished by a f~ne

of not more than «two-hundrea-fifty» one thousand dollars, or by 

Additionl in text are indicated by underline; deletions by &&rikeew&& 

1944 

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