..

### ~\.":;'j:**.~ ~.,.**  

# OFFICE OF THE ATTORNEY GENERAL Ken Eikenberry,AttorneyGeneral TempleofJustice,Olympia,washington98504

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 DearDirector 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.·_--.._------_
.._--.


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OFFICE OF THE ATTORNEY GENERAL June 25, 1984 

# Ie Page 2

OUTLINE OF CONTENTS 

### Topics Page
3 OVERVIEW 9

: I. IDENTIFICATION AND LISTING.

.

- . 11 II. STANDARDS FOR GENERATORS .• 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

t

. 

# 4It IX. AUTHORITY TO SHARE INFORMATION WITH EPA 18 X. AUTHORITY OVER INDIAN LANDS

. . . . . . 20



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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

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,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 meetingsOFFICE 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 IIcitations II 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 "manifest ll ) WAC 173-303-040(65) (def. of "person ll ) WAC 173-303-040(85) (def. of "storage") WAC 173-303-040(94) (def. of "transportation ll ) 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 waste ll ) 

## 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; _Wregulations are concerned l 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.
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## .
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 173-303-141OFFICE 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:'610OFFICE 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 IIestablishmentsII 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 lIestablishments ll 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 statutesand 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 toeneral 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 foster public awareness, inforII ••• mation 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-thousand** acre 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). 

# IOFFICE 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 Act lt ) ­ 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 IIperson ll to include an "individual ll without limitation as to Indian or non-Indian. 42 U.S.C. 6903(15). IIPerson ll 

# , 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

# ~U~ CHARLES 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·tI\ori'z"it

# ron_ -... •.. 

# . 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 identi

### fied 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 '11th 

### 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~** **"""'".,~ ¥;~,** **~_;::,«"""'" F;t!?1'i'~~!i?'\.**  ,_ ....**..,...~~** ......... ...**,~-"",,*J.'~-;~~*9't4!':"_.""';,",-<;**"(
.

..

. -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 statutesand 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 

## S 

## t**'~~t** e

# 's de {inition 0 f 

### df 

### sposa' asusedin the statute 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 

### 1ncl.ude the 5

### e praet 

### 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 fi

### na1 ·author i zat ion. howeve r i 

### 1n 1i eu 0

### fad 0

### ptin 9 EPA' s E p. 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 scussions 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 

### stateme nt by t he Att orney G 

### e

### nera 1 

### t hat 

### EF SEC has a

### de quate authority to carry out a program substantially eq

### u;va 1 e

### nt to the Federa 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 accept­howThis 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

### 0

# v, de.

### t**~.** 

### t:h

### reel

### ssurIncesspe11ed 0

### ut 1n 40 C f 

### 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. E**t~** TRY AUTH0RI 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 scussion: 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·

### ulat·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



## , 

# JIS.

., • 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 with 

### 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 clarffy responsi­ b11ities and to assure appropriate standards and procedures will be utilized.

. The enclosed COIl1l1ents supplernent 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 review. .' 

### 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. Sincerely. 

# ,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 ·universeof. 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 facilities 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, 

## -. ·1 

### t

..
-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 should 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). part1cul 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. 40CFR 271.131(a) (formerly aclmini.tration ofthehaurdOUIwa.te

•**~i'** TO LOCAL EDUCAnONAL AGENCIES 1121137(a):47 FR 3::371. July 28. 198%) manlgementproaram willrevert toEPA. - )MEET SPECIAL EDUCAnONAL.**~..** further providelthat on July 28.1983.-­ Usa ofSubjectllDtoCFIl Put.Z7'1 •

EDS OF DISADVANTAGED •

## ·w·. •.Interim authoriutioM terminate e'Lcept • CHILDREN .;..

. .-••. "":'

... ;.,_ •

... wbere the Statehal .ubmlUedby tbat- • Haurdoui·materiatl.Indianllnda;, • '.. ••. date aD applicationloraU Pha.e.' .Reportina Ind recordkeepina 

### • 1200.51 (Amended) Component' ofinterim authorization.

- requirement

..Wa.te treatment and

Section ZOO.58 il amendedbyinserona Where the luthorization (approval) of dilpo,at. Intergovernmentalrelatioftl. ,Approvedbythe Office of, the State prosram 'erminatel. EPA I. to Penaltiel. Confidential bUlineli Management and Budget undercontrol adminilterend enforcetheFederal Information.

... number 18t()..0504)" afterthe dtation of program in thole Statet. However. the**~"** 2002(a). 300& and7004(b). Solid Wa.te**~uthority a.'~.** **e~d** of.the eeclioQ. Reaiona1 Adminiltratpr

### miY. rorSood 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 '., ."." • lorlubmilaion oftheinterim

. amended (42 U.s.Co e9'12{I) and 6974IS))) '. authorization application and the' Dated: July u.. 1811· • • deadline fortennination 9fthe approval Da.rI•• R.

# ,.a..
.

. ofthe Stateprogram.' •.
.. ENVIRONMENTAL PROTECnON lIr,ionolAdmini,trrJlDr. AGENCY Nole.-40erRPar11Z3. 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 Part271
,. .. . ftcodified on April 1. 1983.a. 40CFR Part Z7J (48 FR 14%48).1

.**ISW~AL** 2'Ot-t) , 

### • '0CFR Part 27' HazardousWaste Management authorization on July 18. 1981. However. Tenneneereceived'Phase

### i interim ISW-1o-FRL2tot-3) Program;Tennessee;**R~quest** 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.. PhaseII, authorization before July 26. 1983. wa. Components A and B. Interim ComponentsA. 8.and C .• delayed due to legislative changes Authorization ofthe State Hazardou. during the 1983 Tennessee Ceneral ACENCY:EnvironmentalProtection Waste**M~nagement** Program Assembly and the adoption ofland**~gency** (F.PA). disposKI and liability insurance

. AGENCY:EnvironmentalProtection AcnON: Notice ofExtension of

­ regulations.Tennessee ha' committed to

. Aaency. • Application Submission and Interim**~he** following schedule for applying for ACTION: Approval orStateProgram.**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 ofthe -September 1983-Submit final provisions. the State ofWc.shin!lton has**de~dline** 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 hearing on proposed land disposal The Environmenhsl Protection Agency Recovery Act 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'~** Ilind II. September 15.1983. and for rhase IL SolidWaste Disposal Control Board ComponenttA and B. interim

. Component C. until October 26.1983. 10 adopt the resulation. authoritation. andhas determined that EPA i. granting this extension. One -October 1983-Approvalof**Washin~lon·1** hazardous waste program • effect ofthis action is to allow regulations byTennesseeAttorney II substantially equivalent to the Federal

TeMeuee to lubmit its application arter General program covered by PhasesJand IL July 26. 1983.11 also avoid' termination**·~ctober** 1983-Submilcomplete'

. Components A and B. The Slateof on July 28 ofthe interim autborization application for Component C Washington is hereby granted interim which EPA granted previously to the -December1983-Submil draft Final authorization for Phases I and IL

. State for the Pha,eI portion ofthe .' Authorization application Components A and B to operate the 

### • hazardoUI waste program.

. r State',hazardous wasle program E'FFECTlV! DATEJuly 25. 1983- Dec:iIloa , covered by the,e pha,el inlieu ofthe FOit F'URTHEit INFORMAnON CONTACT: OnJuly 25. 1983. In c:on'iderationor Federal prOjranl. except a. toIndian Jame. H. Scarbrough·. Chief.Residual.

. TeMessee·. effortI 10obtainthe land.. ManagementBranch. Environmental necessary legi.laUon and**~gulationa** > IFFECT1VE DATE: August 2..1983- Protection Asency. 345 Cour1land Street. and the impact on the reBUlated FOit fURTHER mFORMAnON CONTACT: N.£.. AU"nta. Ceorail 30365. Telephone community.I found there wal Sood BettyWiese.Waste Management

. (404) 881-3011. caule 10grant the State'. request for**~e** Branch.U.S. EPA. Region 10. 1200 Sixth**SU~MENTARY** INfORMAnON: extensionsbeyond thedeadline (or '. Avenue. Seattle.Washinaton98101•.

. applying for PhaaeU. Therefore. BacklroLlD. .• (206) 442-2857. Tennellee mUlt officiaUy submita· 40CFR 211.1:2(c)(4) (formerly complete application rorPhale·D.

. SUPPLEMENTARY INfORMATION: . 1 123.122(c)(4); 47 FR 323".July

### ze. ComponentaA. B. bySeptember15.

. Blcklrowa•**./~)** requirel that Slatel whichhave 1983. and for Phale II. ComponentC.

# b,

"eceh,ed any but not aU Ph.lea' October Z6. 1983. Ifthe State faill to In the May 19. 1980 FederalRegister Componentl ofinterim authorization .ubmlt a complete Ipplicationbythe

.. (45 FR 33(63). the EPA promulJt8'ed • amend their orisinal lubmillion.byJuly date•. approval ortheStlteproFa1ft • ftRulationl. pUfluant to Subtitle C orlbe 28.1983. to include aU Components01 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 

## orthe EneruFadiitySiteEvaluation a Memorandum orUnderstandir,8 protecthuman health and the Council.

. between EFSEC and DOE; provided a environmentfrom the improper PeDdinareceipt ofdocumentl and

. discussion ofEFSEC's authority to adopt management ofhazardoul waite. Infomlation to complete the application. naJes: and provided a Reneral Induded in these regulations. which EPA conducted a thoroughreview ofthe description of**th~** EfSEC project becameeffective November 19, 1980, application II .ubmitted to evaluate

.certificationprocess. The application 

### •

.wer:e provilionsfor a transitionalItage lubstaatiaJ equivalence with the Federal Includedinformation describing In which Statel would be granted .program. EPA'. commentl included hazardoul waste activity at energy Interim program authorization. Interim requestl for clarification orasaurance. 'acilities.At the present time. haUrdous authoriutionwiD be granted intwo regarding bowcertain alpect. ofthe waste activity at energy facilities under phasescorrespondint to the twoItagel program would becarried out. aa USEeljurisdiction is limited to ·Inwhich the underlying Federalprogram discusled below.To complete the possible intermittentgeneration at three

takeseffecL application and torespond tothe facilities, burthere is no on-lite questions and issues raised byEPA. 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 ofhazardous waste among otherthing,: the initial September28.1982. November5,1982. activity il expected in the foreseeable identification and listing ofhazardous and November 19, 198Z. incJuding a future. The Authorization Plan w6s also wastes; the standards applicable to completed. signedAttorneyGeneral'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 December2.Z. 1982. EPA made the additional confirmation ofEFSEC 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 receivepermits. 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 of portions of the second Phase I and Phase II, Components A and Agreement (MOA) with EPA with phase ofintenm authorization. EPA'. Bofthe hazardous waste management respec: to their regulation.ofhazardoul decision to make the second phase of program at a public hearing to be waste generators. interim authorization available in conducted by Region 10on 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 ofthe State's dangerous waste as expeditiously as possible and by the close of the public comment criteria for designation and deJisting of because some ofthe subparts ofthe period, February 1, 1983. As EPA waste would assure regulation ofa Federal regulations containing conducted the fonnal review ofthe 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 orassurances from the State's**derlJlitjo~** ofsolid wasle proVides promulgated at different times rather State were requested. As discussed for regulation 01 waste that**~re** recycled: below, on April 1 and June 20, 1983, EPA than in one single promulgation al and how the extract procedure toxic test

. received additional assurances from the originally anticipated. ComponentA of methods for pH monitoring are State toconfirm and clarifyinronnation PhaseUcontains. standards for ·substantially equivalent to EPA·s. In the**contain~ i~**  the complete application. pennitting containers, tanks and certain completed application, the State kinds of8urface impoundmentl and Discussioa included an addendum comparing the waste piles. Corr.ponent B contains State's criteria with EPA listings; an Washington'l applicatioR.al initially standards lor pennittinghazardoUi AttorneyGeneral', opinion that .ubmitted. demonstrated that the State'l waste incinerators. discarded chemical products (whether program latisfied many ofthe ·The Governorofthe Stateof off-t;pecification ornot) are subject to requirement. for a substantially Washingtonlubmitted an applicatiooto the State'l regulations: assurances from equivalent program.The following ia a EPA forPhaseI and Phale IL

.**th~** DOEregarding authoritytoregulate lummaryofthe majorisluel identified ComponentsA and B. Interim recycled waites: and assurance. during the coune ofEPA'Ireview ofthe authorizatioo onMay3. 1982.The State State'. application aDd how the State reKarding extract procedure toxic: pH choae notto lubmita draft applicatiOD amended the appUcation torespond to monitoringprocedures. In response to toEPA fo advance ofthe formal EPA coneema:
. EPA', fmal comments, the Anomey • application. EPA conducted an inJtia! •• 1. The role01**th~** EnergyFacility**Sit~** Ceneral'.**omc~** atso provided an

review ofthe application to**det~rmine** Evaluation Council(EFSEC). :. opinion that the State hal authority to whether Itwal complete: the EPA found EFSEC**pre~mptl** otherState

. :. •.
. regulate recycled wastes.The the application to be incomplete, inpart requirements in approvingthe '.

- .•. Authorization Plan was amended to because the AttorneyCenera.'. constnJction and operation oflarae

. Include Ipecific commitment. to develop Itatement wal incomplete.The energyI'rojecta. EPA requested a necessary c!ata orregulatory

. application. allo,did not identifythe description ofhowhazardoul**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 gapin the de.cribed the Statedemon.trated EFSECI '

..: eliminate ambigUity regarding**recycl~d**

._ICOpe and coverase ofhazardoul wa.te adoptionofthe haurdoul wa.te .0:**':~** ' waltel.

­

aou.rcn inthe Stlte-tho.eeoergy regulationl ofthe lead a8eney, the

. :. I.**C~nerator/transport~r** .•
. r.cilitiel that are underthejurildiction Department ofEcology (DOE); lubmjtted**requirem~nts;** EPA requested••

# .~.~**~'3«9Sti"** Federal Register' Vol.

# ~UO. 149 , Tuesday, August 2..1983 , 

### R

# ~.~ and Regulations

f clarificationregardina therequtremant amended to dearly**Id~ntify** the 1C0pe

## of amended venion intheJuly 28. 1982**"~'** that seneraton designate on**~e** enforcement authority. In the complete promulsation. •.**~.** . 0 •• :**:'-~'iPPin8** manifest only permittedor . " • application. the Attorney General al.o roved racilitie. when ,hippma

.. - .... darifiedthe ,copeand intentof

. aste' outof.utefor treatment. ::. .tatutoryauthoriUel for .haring Itorage ordilposal; andresard.iDa " . " InformationwithEPA·and authority to requirements for transporter

.. ent.,.premi.e. for iDlpectionofrecord

.. respon.ibllitie. illthe event of.plll.of In the final comment" EPA requelted. 0' haurdoUiwa,te.intranaiL In the lpecificcommitmentfrom the StateDOt completed application. the State :. to0ppoleinterventionbydUzeD

.**o~'** darified that underitl nale..

. .. intervenon incivil enforcement ae:tioDi lranaporteraare required to take actioD brouaht lothe Statecouru. EPA al,o in the event ofa Ipillin transit and '. requelted anexplanationresardina

# t:.

o· includedMOA asaurance. regardm, authoritielofthe PollutionControl requirementl for seneratordelignaDOD • Hearinga Board-e State admini.trative ofpermittedfaeilitie•. In response to

. appeal, board.Torespond to the

.. EPA'.final commentL the Attomey concems,the State made an agreemeDt Ceneralltated that the Stateha,the in the MOA not to 0ppoleinterventioD authority to maKe IUch MOA in Statecourtenrorcementproceeding

.. commitments.The Authorization Plan The PollutionControl Hearing, Board
was amended to commit to a regulatioD

. initiatedrulemaltins to the effect that

. amendment to anure fully equivalent the Board will not modify pennitl on seneratorrequirementa. appeal, butinstead will remand tothe

. DOE any permit found invalid. 4. Facilitystandards/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 assertingjurisdiction 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 40CFR huw the Slate would latisfy the 123.121(0), States are not**requi~** to requirement that all RCRAdraft permit have luchjurisdiction to qualify for notices bemade 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 StateAttomey Ceneral.The Stateof amend Slate regulations to specify Washington asserted. in the complete

, liability insurancerequirement. {or application. that upon authorization it

permittedfac: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 assertionis not adequately State'shaurdous waste statute itself lupported in law orby the analy.ii, and between the 8tatute and it.

. provided; therefore. EPA will retaiD implementing regulationl; and authority for implementingtheFederal clarificaton ofauthoritie. for Iharina programon Indian lands. confidential inronnation with EPA. for • inspection entry authority and for ScopeofComponentA.Pha

.. D 8ssurinspublicparticipationin the AI orisinaDy promu18ated onJanu." enforcementprocell.EPA noted that 12.. 1981, ComponentA included

. certlsin atatutory language appeared to permitting Itandard.for unain classel limit enforcementremedies toproaram oflurface impoundments and waite '. violaUont involvingextremel, pUe. used for treatment or ,torase of hazardoul wa.te. a lubset ofthe State'. bazardou. waltel.The State', unh'erse ofregulated dasngerous·wa.te

.. application for ComponentA i8 • Inresponse to EPA·,comment. the .' conailtent with thole January 12.. 1981 Attorney Ceneralanlwered thatthe ruJel. OnJuly 28, 1982. aa part ofthe _tatehal the authority toenforce aU

. facility .tandard.for land dilposal

•
.rogram requirements; thi. opinion wal permitting. EPA amended theearlier' .uPPoi1ed byevidence ofenforcement ComponentA nale. for lunace acHona initiated byDOE.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 originalEPA

.. -.nnounc:ement couldproceed under

thole applicationl without a change in the application requirementl. Where a State.like Washington. hal proceeded to the Itase oflubmittal ofa 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 orfacilities coveredhi'

. the orisinal component for the limited clall oflurface impoundments and waite pileI used for treatment or .tor8se ofhazardous 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 10on 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 otheroral statements were made. EPA Region 10received two additional written comment, by the "close of the announced public comment period. February 1. 1983. Shortly after the close ofthe comment period. one additional written commentwas 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 ofjurisdiction over Indian lands. The following i. a more detailed lummary ofthe commentl received and EPA'.resonse 10 the.e commenta.

.

One commentorprovided a general expressi.on ofthe need for a Slate program to operate in addition to the Federal program to help cleanup lite. which the Superfund.program i. not reachins. A aecond commentor exprelled qualified IUpport ofthe 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 ofhazardous waste.This

. authorization to**oper~te** itlhazardous participating in the National Flood commcntornoted that upon approvalof ·.waltepro8ram in lieu ofPhase land Insurance Program (NFIP) and eligible the Shlte pr08ram. implementation Ph.,eII. Component.A andB ofthe lor lecond layerinsurance coverage.**pro~11** would be monitored. A third bazardous wa.te pro8ram. exceptwith Theae communities have applied to the commentorexpresaed full .upj>ort for respect

# '0 hazardous waste activity on • program and have agreed to enact authorization ofthe Slate's Pro8ram. Indian land. which will remain unoer ceJ1ainnood plain- management Thefourth commentorobjected to the theFederalprosram. mealures.The communities' State's assertion ofjurisdiction over participation iri the regular program Indian**Jand~.** notin8 that the Stateha. ComplianceWith**Ex~tiv.** Order**U.~1** authorize. the .ale ofnood insurance to -'0overcome"bothFederal and State The Office ofMana8ement and Dudget owneu ofproperty located inthe law in order to achieve .uchjurisdiction. has exempted this rule from the communitie. listed. This commentor. and t1'e one .ubmittilll requirements ofSection3 ofExecutive**~FFECnvE** DAT£!IThe date listed in the late comments. each asserted the State Order 1231. lourth column ofthe table. does not in fact have authority to Certification Underthe 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 of5U.S.c. property insurance agent orbroker • Ipecific lupport ofthe Stale's program. eo5(b), I hereby certify that this**.~rving** the eligible community. orfrom but points out that the hazardous wa8te authorization will not have a significant the National Flood Insurance Program program being consider'!d has no direct economicimpact on a substantial '. (NFIP) at: P.o. Box 34Z94. Bethesda, bearing on implementation ofcurrent number ofsmoll entitie•.The Maryland 20034. Phone: (800)**6~:!0_** Superfund clean-up activities which are authorization suspends the applir.abiHty conducted pursuant to the ofcertain Federal regulations in {n'orof fOR FURntER INFORMATION CONTACT: Comprehensive Environmental the State program. thereby eliminating Mr. Richard E. Sanderson. ChiefNatural 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 ofthe 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 ofSubjects m40eFR Part271 (NFlP). enables property owners to enforcement authority. With respect

# '0**purch~se** nood insurance at rates made' the**~xpression** ofqualified 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 ofauthorized .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 ofState 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 SolidWaste Disposal noodinsurance is now**availabl~** for authorityfor the State to exercise .Act a8 amended by the Resource property in the community.

. jurisdictionoverIndian lands. Contrary Conservation and Recovery Act of1978 In addition. the Director ofthe Federal 10 the State's argument.EPA concludes and Solid Waste Disposal Act Emergency Management Agency'hal 

### 'f that RCRAand the aetOl8u"tbortzatlon--'**Am~ndments** of 1980, 42 U.S.C. 6901 et. Identified the special flood hazard areas _; do not convey to the State any authority leq., msome ofthese communities by



### 1 relative to Indian landsjurisdiction.

. Dlled:July 18.1983­ publishing a Flood Hazard Boundary 

# ,t**~ather.** Stalesmust independently Eroe.ta B. Bamn- Map. The date ofthe flood map. ifone obtain IUch authority expressly from RegionalAdmini6tratDl'. has beenpublished. i, indicated in the ,Congress orby treaty. The Statehal 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 beenSTanted COOl**.~** bas been published. Section 102 ofthe .uch**a~thority;** EPA. therefore, will 

## e=============== Flood DisasterProtection Act of 1973. a. retainjuri.diction for operatinsthe FEDERAL EMERGENCY amended.requires the purchase offlood Federal program on Indian landa inthe MANAGEMENTAGENCY Insurance as 8 condition ofFederal or

. StateofWa.hington. lederalJy related financial assistance for ••4CFR 'art

..



# . Ded.loa acquisition orconstruction ofbuildings

, (Dockft**~o.** fEMAIMiI. In the .pecial nood hazard area shown Ihave determined 'bitthe • Wathington State program i. on the mlp. 

# u., ofCommunltle. Eligible forthe TheDirectorfinds that delayed .ubstantiallyequivalent to the Federal '. -Sale of Insurance Underthe Natlona!

. effectivedates would be contraryto,the 

# • program for Phale I and Pha.eIL Componenta A and Bhazardoul 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 under5

.271. SubpartB (fonnerly40 CFR Part

.. AGENCY: Federal**~eraency** U.S.C. S53(b) are impracticable and

_unnecellary. 123. Subpart F): In accordance with**-~ana8ement** Aaency, I .' Section 3006(c) ofRCRA. the Staleof The Catalog ofDomesticAssistance ACTlON:ranal nale. '. Walhinaton i.herebypntedinterim Number for thil program il 83.100 

## , aUMMARY:11li.nale Ii.tacommunitie. ,**~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 

### require 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. Amore 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. Asimilar 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 authorities 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. Edwin CoateActing**Region~l** 

### Administrator Enclosures

cc: Earl Tower, Headquarters, DOE Tom CooK, Headquarters, DOE are available to**~nswer**



### Charles Douthwaite, Assistant Attorney General



# •-, .;

. ,



### ..

· · .:-


# . ., 

### REVIEW OF WASHINGTON ".J 

# • ," '. 

### 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** 11 I. 

### ,. 7 

### 5 

### 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.



# • Aseparate 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, Oisposa,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~t** 

### provisions 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 \nlYafter 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



### -4­I "'•. ;•• "\,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.tP"**~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 

# d 

# " .**~n'!f!Cantl~** restrict EPA's access to information.

### l~';v:'... [) \ 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 Aand 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•

-6­I '

# ..

., 

### 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 forwhich a State must have enab1ing 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



### COVERAG: 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** tcrino

l**inscec~i:io** wi •

..... 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 Conti 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 C

PR**-~'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 1**a~'** 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.'''5Exhibit 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 .cv e the**~.p~i'tiieat"'~'of~«6nJtJ'-lr.** itipO••'iiI to Pirtrcr;;t. fuU, iD a84 ia A 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 Karch21 • 1914

F'LED h

.. 

# 1{gij;:£::

MAR 17 814**r~.** U01 -2-**U/,~**



### ........

• I 

# :.'.".

," ) 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:pecmits**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 dispi ahal

the by J

of r

rule

RCW

mana

mane**c~n!** man, depc of**~'** reg; catl dep< appjl in env' pre: sha sha

rec· pol

•**l~**



## I·

pC .@ ., L,P.**-'·~~.''''MtXfi** 70.1**~T1.' :,-.\.~**  "'.',:'

..,. :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::

..**R~. ~?5A.**  060 ns;
....

IW 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

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### 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 application 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 SENA TE 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

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